[2024] UGHCCD 96

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)**

**CIVIL SUIT NO. 227 OF 2015**

# **1. HON. JOHN KEN LUKYAMUZI**

**2. NAMPIJJA SUZAN ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS**

## **VERSUS**

# **1. THE EDITOR HELLO UGANDA**

**2. THE CEO, PEPPER PUBLICATIONS LTD**

**3. PEPPER PUBLICATIONS LTD :::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

# **BEFORE: HON. JUSTICE BONIFACE WAMALA JUDGMENT**

### **Introduction**

[1] The Plaintiff brought this suit against the Defendants jointly and severally seeking general damages, apology, exemplary/ punitive damages, injunction, interest and costs of the suit arising out of defamatory statements published by the 1st Defendant in the Hello and Red Pepper Newspapers.

[2] The brief facts according to the Plaintiff are that on 28th June 2015, the 1st Defendant in their newspaper, Hello Uganda Vol. 3 Issue 093, published on their cover page alongside the 2nd Plaintiff's photograph an article headed: "Ex-MP Nampijja hooks UPDF General" with a story excerpts of which read as follows;

*"Former Lubaga South Member of Parliament, Susan Nampijja, a daughter to Lubaga South MP, Ken Lukyamuzi, has hooked up a top UPDF General from Western Uganda to wipe her tears after she was allegedly hacked by her fallen estranged partner. The General is already in high moods, enjoying the ripe fruits of Nampijja. … It is said that at [the time Nampijja was attacked and beaten], the General had started seeing her secretly, and that he is the one who footed her huge medical bill at case clinic along Buganda Road … It is said that the General* *did not only please gorgeous Nampijja but her father as well. Ever since the General came into his daughter's life, Lukyamuzi's lifestyle drastically changed. He is no longer Ken The Man who used to drive a DMC Caldina that used to evade NEMA enforcement guys for polluting the environment with dark smoke full of carbon monoxide. These days, he cruises an air conditioned Toyota Kluger … In 2012, before Nampijja was attacked, she travelled secretly to Johannesburg and Pretoria in South Africa and met the General who was on a military refresher course. The two enjoyed his other's company for almost two weeks. It is believed that when Mukisa [Nampijja's husband] learnt about what had transpired in South Africa, he allegedly … hatched a plan to harm his wife. He reportedly hired goons who … ambushed her in the compound. … It is said that when some of her sympathizers got this information, they swung into action and revenged on her behalf. … It is said that he [Mukisa] was worked on thoroughly which resulted into his death … When Mukisa died the General remained unrivalled and started meeting Nampijja in various hotels in Bugolobi".*

[3] The Plaintiffs averred that the above publication was highly defamatory of the Plaintiffs in the particulars set out in the plaint. The 1st Plaintiff further averred that on February 2014, the Red Pepper Newspaper had also published an article headed "Cabinet Reshuffle" which contained defamatory words against the 1st Plaintiff. The 1st Plaintiff averred that the tendency of the 2nd and 3rd Defendants to publish falsehoods against the 1st Plaintiff aggravates the defamation and thus entitles him to punitive damages. The Plaintiffs stated that as a result of the publications, they have been brought into scandal, experienced mental pain, anxiety, emotional stress, irritation and annoyance.

[4] The Defendants filed a Written Statement of Defence (WSD) in which they denied being publishers of Hello Newspaper and claimed that they were wrongly sued and the plaint discloses no cause of action against them. They further denied having published the statements complained of. They also averred that the claim is res judicata having been handled in Civil Suit No. 40 of 2014. The Defendants also averred that the words published in their natural and ordinary meaning or by innuendo are true in fact and substance but in the alternative, the Defendants aver that the publication is a fair comment. The Defendants prayed for dismissal of the suit with costs.

#### **Representation and Hearing**

[5] At the hearing, the Plaintiff was represented by **Ms. Stella Nakamya, Ms. Nakigudde Winnie** and **Ms. Caroline Namara** from M/s Rwakafuuzi & Co. Advocates while the Defendants were represented variously by **Mr**. **Maxim Mutabingwa**, **Mr. Denis Nyombi** and **Mr. Allan Bariyo**. Along the way, the first two counsel withdrew from representing the Defendants. When Mr. Allan Bariyo took over instructions, he withdrew from representing the 1st Defendant and only retained representation of the 2nd and 3rd Defendants. Counsel made and filed a joint scheduling memorandum which was adopted by the Court. Evidence was adduced by way of witness statements. The Plaintiffs led evidence of four witnesses while the Defendants did not produce any witness. Although the defence intimated that they intended to raise preliminary objections and were given time and a schedule to do so, they did not do so. Later on, owing to non-appearance of Counsel for the Defendants upon proof of service, the Court allowed the hearing to proceed ex parte against the Defendants under Order 9 rule 20(1)(a) of the CPR. At the close of the hearing, Counsel for the Plaintiffs made and filed written submissions which have been considered by the Court in the determination of the issues before the Court.

#### **Issues for Determination by the Court**

[6] Three issues are up for determination by the Court, namely;

*a) Whether the publication was defamatory of the Plaintiffs?*

- *b) If so, whether the Defendants are jointly and severally liable?* - *c) Whether the Plaintiffs are entitled to the remedies sought?*

### **Burden and Standard of Proof**

[7] In civil proceedings, the burden of proof lies upon he who alleges. Section 101 of the Evidence Act, Cap 6 provides that;

*"(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.*

*(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person"*.

[8] Section 103 of the Evidence Act provides that the *"burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person"*. Accordingly, the burden of proof in civil proceedings normally lies upon the plaintiff or claimant. The standard of proof is on a balance of probabilities. The law however goes further to classify between a legal burden and an evidential burden. When a plaintiff has led evidence establishing his/her claim, he/she is said to have executed the legal burden. The evidential burden thus shifts to the defendant to rebut the plaintiff's claims.

### **The Evidence**

[9] The Plaintiffs led evidence of four witnesses. **PW1** was the 1st Plaintiff **John Ken Lukyamuzi**, aged 69 years, resident of Kabowa, Mutundwe Parish, Rubaga Division, Kampala. He stated that he is a lawyer, businessman, a former Member of Parliament and President of the Conservative Party, among others. He sued the Defendants jointly and severally following their publication of an untrue and malicious article against him on 28th June 2015 wherein it was stated that former Lubaga South M. P Suzan Nampijja, his daughter had hooked up a UPDF General from Western Uganda. He stated that the content of the article was false, malicious and injured his reputation and negatively impacted on his life. He stated that the publication in its natural meaning was meant to portray him as a man who was depending on the alleged General for survival and had brought up an immoral daughter that he was using for material gains. He stated that he does not know of any General who has dated his daughter and gone ahead to extend favors to him. Contrary to the allegation in the article, he purchased his car using funds from Parliament of Uganda and paid the 2nd Plaintiff's medical bills at Case Clinic using his hard earned cash. He stated that the said article was understood and intended to cause the electorate to shun him. The timing of the publication shows that it was intended to prejudice him in the 2016 elections since he had declared his intention to contest. He further stated that wherever he went in search of votes, the voters insulted him on the basis of the said publication labelling him incompetent, immoral and a person looking for material gains. He averred that his loss in the 2016 general elections was largely as a result of the said publication which gravely damaged his reputation and continued to negatively impact his campaigns in 2021. He also lost friends, relatives and colleagues in the political arena who believed the contents of the said article. The Defendants have previously published a false article about him where they later issued an apology/ rectification. PW1 therefore prayed for compensation by way of damages.

[10] **PW2** was **Suzan Nampijja**, aged 42 years, resident of Kitebi star, Mutundwe Parish, Rubaga Division and a former Member of Parliament for Rubaga South Constituency. She stated that the Defendants jointly and severally published a defamatory article in their Newspaper Hello Uganda Vol. 3 Issue 093 of June 28, 2015 on the cover page alongside her photograph with a title "Ex- MP Nampijja hooks UPDF General". The entire publication was malicious and full of false hoods, intended to portray her as a sexually immoral person. She stated that she never hooked up or been sexually involved with any UPDF General. It is not true that a UPDF General paid her hospital bills and she has never been South Africa as alleged. It is not true that she conspired with the alleged General to kill her late husband. She stated that the said article portrayed her in society as an immoral, cheap, murderer who was not fit to even hold political office judging from the insults she receives on a daily basis. She further stated that while carrying out consultations with her electorate, she felt the impact of the said publication because she received hostility from the electorates and decided to step out of the elections which marked the downfall of her political career and she cannot contest again unless her name is cleared. She has lost employment and business opportunities because the public lost trust in her. She has suffered mental and psychological anguish as members of society treat her with ridicule and hatred ever since the said publication.

[11] **PW3** was **Deo Najja Karuhanga**, aged 56 years, resident of Buloba in Wakiso District and a businessman with a shop at Kafumbe Mukasa Road, Kampala. He stated that while walking on the streets of Kampala, he came across a Hello newspaper on display with a headline on the front page "Ex MP Nampijja hooks UPDF General" and a photograph of Nampijja alongside. He stated that he was shocked by the headline and was forced to purchase a copy of the newspaper to find out more. He was shocked upon reading the article which also involved the 1st Plaintiff. He could tell that the author meant that Suzan Nampijja had entered into an extra-marital affair with a loaded UPDF General who had since taken over responsibility of looking after her and even paid her medical bills and also bought her father the Toyota Kluger motor vehicle. He stated that he could also tell that the authors were suggesting that the 2nd Plaintiff conspired with the alleged General to kill her late husband. He wanted to find out the truth and so he went to the 1st Plaintiff's residence to inquire about the truthfulness of the publication where he found him still in shock about the publication. During that time, the 1st Plaintiff was contesting for the MP seat and the publication negatively impacted on him and he lost the election. PW3 stated that he always hears the Plaintiffs' electorates insulting them and calling them all sorts of names such as double dealers and gold diggers.

[12] **PW4** was **Alex Bukenya**, aged 39years, resident of Kabowa, Rubaga Division and a businessman dealing in shoes. He stated that he knows the 1st Plaintiff as a man of integrity and morally upright since he was his area MP for about 15 years. He stated that in June 2015, he was shocked when his attention was drawn to a newspaper article in Hello Uganda where it was alleged that the 1st Plaintiff's daughter had hooked a UPDF General and that the General had gone ahead to pay for the 2nd Plaintiff's medical bills and bought the 1st Plaintiff a Toyota Kluger motor vehicle. The article became a subject of discussion in the whole constituency and he often heard people backbiting the 1st and 2nd Plaintiffs as immoral, cheap and double dealers. PW4 stated that he one day met the 1st Plaintiff and asked him about the said publication and was informed that it was not true. During the campaigns, he heard people referring to the Plaintiffs as money minded and not fit for political office. He stated that he attributes the 1st Plaintiff's loss of the 2016 general election to the said article.

[13] The Defendants did not lead any evidence in defence of the case.

#### **Resolution of the Issues**

# **Issues 1 & 2: Whether the publication was defamatory of the Plaintiffs? And whether the defendants are jointly and severally liable?**

#### **Submissions by Counsel for the Plaintiffs**

[14] Counsel for the Plaintiffs submitted that according to Winfield & Jolowicz on Tort 13th Edition at page 294, defamation is the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. Counsel cited the decision in *Dr. Specioza Kazibwe v Independent Publications Ltd & Others, HCCS No. 105 of 2010* for the essential elements of the tort of defamation.

[15] Counsel submitted that on the present evidence, the Defendants published an article about the Plaintiffs to the whole world which was injurious to their reputation. The 1st Plaintiff was a Member of Parliament and a President of the Conservative Party while the 2nd Plaintiff was a former Member of Parliament and Secretary Women Affairs for the Conservative Party. Counsel stated that the Plaintiffs' reputation was harmed by the defamatory statement which resulted in the 1st Plaintiff losing the election and portrayed the Plaintiffs as paupers. The 1st Plaintiff being the father of the 2nd Plaintiff, it was insinuated that he had raised an immoral daughter who he was using for material gains; which degraded his reputation. Counsel reasoned that the statements were intended to cause disgrace to the Plaintiffs in the eyes of the electorate and their reputation did not remain the same ever since the publication. Counsel also stated that the publication insinuated that the 2nd Plaintiff was having an extra-marital affair, she was portrayed as an adulterous woman since at the time, she was married to one Mukisa Geoffrey; which was not true, the 2nd Plaintiff having denied being hooked to any UPDF General.

[16] Counsel for the Plaintiffs also submitted that the Defendants are jointly and severally liable on account that they are the proprietors of the newspapers that published the statements. Counsel stated that the statements were published on 28th June 2015 by Hello Newspaper and 6th February 2014 by Red Pepper Newspaper.

## **Determination by the Court**

[17] In law, for a statement to be considered defamatory, it has to be one that is published and carrying with it a tendency to injure the reputation of a person to whom it refers by lowering him or her in the estimation of right thinking members of society generally and in particular to cause him/her to be regarded with feelings of hatred, contempt, ridicule, fear or dislike. Typical examples include an attack upon the moral character of a particular plaintiff attributing to him/her any form of disgraceful conduct such as crime, fraud, dishonesty among others. See: *Geoffrey Ssejjoba v Rev. Patrick Rwabigonji HCCS No. 1 of 1976 [1977] UGHCCD 1*.

[18] Defamation may be expressed in form of words (oral or written) or through pictures, cartoons, among others. In order for a plaintiff to succeed in a suit for defamation, he or she must prove the following elements;

- a) The Defendant made a statement about the plaintiff to another; - b) The statement was injurious to the plaintiff's reputation in the eyes of right thinking members of society; - c) The statement was false; - d) If the plaintiff is a public figure, or was involved in some newsworthy event or some other event that engaged the public interest, then the

defendant must have made the false statement intentionally or with reckless disregard of the plaintiffs rights; and

*e)* There are no applicable privileges or defences enjoyed by the defendant.

See: *The Red Pepper Publications Ltd & Anor v Rtd Chief Justice Samuel W. Wako Wambuzi, CACA No. 128 of 2017.*

[19] In the present case, the complaint by the Plaintiffs is that the 1st Defendant published an article alongside the 2nd Plaintiff's photograph in the Hello Newspaper with a title: "Ex-MP Nampijja hooks UPDF General" and a story giving particular details as set out at the opening of this judgment. It was alleged in the pleadings and it has been shown in evidence that the persons who read the article perceived the Plaintiffs as cheap, immoral, double dealers, money minded and not fit for political office. PW4 (Bukenya Alex) testified that he attributed the 1st Plaintiff's loss of the 2016 general election to the said article. PW3 (Deo Najja Karuhanga) testified that he could tell that the authors were suggesting that the 2nd Plaintiff conspired with the alleged General to kill her late husband and that the publication negatively impacted the 1st Plaintiff who lost the election and the electorates have continued to insult him and call him all sorts of names such as double dealers and gold diggers.

[20] In their testimonies, the Plaintiffs testified that the publication was false, and that contrary to the allegation in the article, the 1st Plaintiff had bought the car that he was driving at that time using money received from Parliament of Uganda and that he personally paid his daughters medical bills. PW1 adduced evidence by way of a pay slip showing that he received money from Parliament of Uganda for purpose of purchase of a motor vehicle. He also led evidence showing that he paid for the 2nd Plaintiff's medical bills by way of a receipt that is in his names. The 2nd Plaintiff testified that she has never hooked up any UPDF General, that she has never travelled to South Africa and that she was forced to abandon her political ambitions because of the impact of the publication. All this evidence was not controverted by the 1st Defendant; and although the Defendants in their WSD denied being the publishers of the story, this remained a bare denial, unsupported by any evidence.

[21] On a balance of probabilities, the Plaintiffs have satisfied the Court that the publication by the 1st Defendant was false and injurious to the Plaintiffs, in that it lowered their reputation in the eyes of right thinking members of society. With no defense being available to the Defendants, the Plaintiffs have established a case of defamation against the 1st Defendant. It was also alleged that the 2nd and 3rd Defendants are the publishers of the 1st Defendant newspaper. This claim was not rebutted. The three defendants are therefore jointly and severally liable for the publication. A case of defamation has therefore been made out in relation to the first publication.

[22] The second leg of the complaint was in respect to a publication by the 2nd and 3rd Defendants in the Red Pepper newspaper dated 6th February 2014, wherein a story was published that; *"Museveni has intensified political poaching in the opposition camp. Last Thursday through NRM Party Enterprises boss Hassan Bassajabalaba, secret talks were held with the CP leader Ken. Lukyamuzi at Fairway Hotel in Kampala. Lukyamuzi emerged out of the meeting room holding a budging envelope which Bassajabalaba told him was a gift from Museveni''.*

[23] The 1st Plaintiff stated in paragraph 36 of his witness statement that it was not the first time the Defendants were defaming him and referred to this article in respect of which the 1st and 2nd Defendants later issued an apology/clarification. The apology/ clarification stated as follows;

## *"Clarification*

*This draws clarity that while on Thursday 6th February we ran a story on page 4 under the title Cabinet Reshuffle and in that story it was said that the CP leader KEN LUKYAMUZI emerged out of the meeting room holding a brown envelope, the said is not true to the person of HON. KEN LUKYAMUZI. We apologise to the person of HON. KEN LUKYAMUZI, his constituency friends and family".*

[24] An apology is an admission of error or discourtesy accompanied by an expression of regret. It is a public plea for forgiveness. An apology is not a defence to a claim in defamation but minimizes the damage done by the original publication which factor may have some relevancy in the assessment of damages for the defamation. In the instant case, according to the clarification above, the 2nd and 3rd Defendants established that the publication against the 1st Plaintiff was not true. Although the apology did not exonerate them from liability in defamation, it has relevancy on the question of assessment of damages.

[25] All in all on issue one, the Plaintiffs have proved on a balance of probabilities that the impugned publication was defamatory against them. They have also proved that all the three Defendants are responsible for the publication and they are therefore jointly and severally liable in defamation. Issues 1 & 2 are answered in the affirmative.

## **Issue 3: Whether the Plaintiffs are entitled to the remedies sought?**

[26] The Plaintiff prayed for a range of reliefs. The first was for an apology by the Defendants. In view of the findings above, the Plaintiffs are entitled to an apology from the Defendants. Since evidence has shown that the 2nd and 3rd Defendants issued an apology/ clarification in respect of the first publication of

6th February 2014, that will suffice in that regard. The Defendants, as publishers of the Hello Uganda Newspaper, are ordered to issue an apology to the Plaintiffs in respect of the publication of 28th June 2015 within 30 (thirty) days from the date of delivery of this judgment. The Plaintiffs are also entitled to an order of a permanent injunction restraining the Defendants from any further publication of libelous materials against the Plaintiffs.

[27] The Plaintiffs further sought for general damages for defamation. The law is that general damages are the direct, natural or probable consequence of the act complained of and are awarded at the discretion of the court. The purpose of the damages is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred. See: *Hadley v Baxendale (1894) 9 Exch 341; Kibimba Rice Ltd v Umar Salim, SC Civil Appeal No. 17 of 1992* and *Robert Cuossens v Attorney General (SCCA No.8 of 1999) 2000 UGSC 2 (2 March 2000)*. In the assessment of general damages, the court should be guided by the value of the subject matter, the economic inconvenience that the plaintiff may have been put through and the nature and extent of the injury suffered. See: *Uganda Commercial bank v Kigozi [2002] 1 EA 305*. Under the law, general damages are implied in every breach of contract and every infringement of a given right.

[28] On the measure and assessment of damages for defamation, Sir Thomas Bingham MR in the case of *John v MGN Ltd [1962] 2ALLER 35* stated thus; *"The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name, and take account of the distress, hurt and humiliation which the defamatory publication caused. In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the* *more closely it touches the plaintiff's personal integrity, professional reputation, honor, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of the publication is very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people"*.

[29] On the case before me, the Plaintiffs showed to Court that they have been former Members of Parliament for Rubaga South Constituency. Evidence showed that they suffered ridicule and the 1st Plaintiff lost the subsequent elections while the 2nd Plaintiff was forced to pull out of the political race. PW3 and PW4 corroborated this evidence when they associated the 1st Plaintiff's loss of election to the impugned publication. It was further shown in evidence that the publication has continued to impact on the 1st Plaintiff's political career and that the Plaintiffs' electorates have continued to insult them and call them all sorts of bad names such as double dealers and gold diggers. In the absence of any evidence to the contrary, I have found these claims made out. I am satisfied that the Plaintiffs had a reputation to protect, which was injured as a result of the publications in issue and the Plaintiffs deserve to be compensated in damages.

[30] The Plaintiffs did not propose any amount in general damages. I have considered the two publications jointly and the liability jointly and severally against the three Defendants. I have considered that in respect of the first publication, the 2nd and 3rd Defendants rendered an apology/clarification. This has the effect of mitigating damages. Taking into account all the factors and circumstances of the case before me, I find an award of UGX 75,000,000/= and UGX 50,000,000/= as sufficient compensation to the 1st and 2nd Plaintiffs respectively, against the Defendants jointly and severally and I award the same as general damages.

[31] The Plaintiffs also sought for exemplary/ punitive damages. According to Lord Devlin in the land mark case of *Rookes v Barnard [1946] ALLER 367 at 410, 411* there are only three categories of cases in which exemplary damages are awarded namely; *where there has been oppressive, arbitrary, or unconstitutional action by the servants of the government, where the defendant's conduct has been calculated by him to make a profit which may well exceed the compensation payable to the plaintiff; or where some law for the time being in force authorizes the award of exemplary damages.* On the case before me, none of the stated circumstances exist and the claim for exemplary/punitive damages is not made out and is unjustifiable.

[32] On the claim for interest, the discretion of the Court regarding award of interest is provided for under Section 26(2) of the Civil Procedure Act. In the circumstances, I will award interest on the general damages at the rate of 10% per anum from the date of judgment till payment in full. Regarding the costs of the suit, Section 27 of the Civil Procedure Act provides that costs shall follow the event unless the court upon good cause determines otherwise. Given the above findings, the Plaintiffs are entitled to costs of the suit and the same are awarded to them.

[33] In all, therefore, the suit by the Plaintiffs succeeds and judgment is entered for the Plaintiffs against the Defendants jointly and severally for;

- a) An order that the Defendants, as publishers of the Hello Uganda Newspaper, publish an apology to the Plaintiffs in respect of the defamatory publication of 28th June 2015 within 30 (thirty) days from the date of delivery of this judgment. - b) An order of a permanent injunction restraining the Defendants from any further publication of libelous materials against the Plaintiffs.

- c) Payment of the sum of UGX 75,000,000/= to the 1st Plaintiff and the sum of UGX 50,000,000/= to the 2nd Plaintiff respectively as general damages by the Defendants jointly and severally. - d) Payment of interest on the sums in (c) above at a rate of 10% per annum from the date of judgment till payment in full. - e) Payment of the taxed costs of the suit by the Defendants.

It is so ordered.

*Dated, signed and delivered by email this 4th day of June, 2024.*

**Boniface Wamala JUDGE**