[2023] UGCA 59

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA **CIVIL APPEAL NO. 25 OF 2014** (Arising from HCMC No.63 of 2010)

(Coram: Musoke, Bamugemereire, Musota JJA)

# SUMAIYA SAIDI LUTAAYA :::::::::::::::::::::::::::::::::: VERSUS

#### ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::: $10$ (Appeal from the ruling of Benjamin Kabiito J dated 16^th October 2013 at *the High Court of Kampala Uganda)*

*Civil Procedure – Affidavit – whether a trial can proceed by affidavits;* whether court should expunge from court record an affidavit of a 15 *deponent who does not avail themselves for cross-examination.*

*Evidence Law – standard of proof – witness protection- section 166 of The Evidence Act – whether witnesses in cases with hallmarks of torture can be granted witness protection.*

# **IUDGMENT OF CATHERINE BAMUGEMEREIRE JA**

This is an appeal from the decision of Benjamin Kabiito J, dismissing the Appellant's application seeking redress from the

respondent. It is the appellant's claim that the respondent's 25 agents abducted and tortured her husband Saidi Lutaaya and as a result, this led to his death. It is also her claim that the abduction and eventual death was an infringement to her husband's personal liberty and his right to life.

$\mathsf{S}$

# **Background**

The facts as ascertained from the pleadings of the parties and the lower court are that on 21^st November 2007 at about 9:30 pm the appellant's late husband, Saidi Lutaaya was abducted by men in ordinary clothes driving a white saloon car registration No. UAJ 485V while he was doing gcneral business at the Old taxi park in Kampala. The men allegedly beat and tortured him

- 5 in the car as they drove off and took him to the Joint Anti-Terrorism Task Force 0ATT) offices in Kololo whcre it is allcgcd that he was badly tortured. A one Sabiiti Katereq9a, who was also allegedly tortured at the JATT offices swore an affidavit to the fact that he witnessccl Saidi Lutaaya bcing takcn in and that - 10 he heard him crying for mercy in the next room. Sabiiti Kateregga and some other detainees were also asked to carry the appellant's late husband onto a pickup; his body was bleeding and full of torture marks. - On 23'd November 2007, the appellant was informed by her 15 brother that he heard a radio announcement calling upon the relatives of Saidi Lutaaya to pick his dead body from Mulago hospital mortuary. When the appellant went to the mortuary, a nurse informed her that her husband's body was brought in by people in full UPDF combat. A year and half later, a death 20 certificate was issued in relation to the death of her husband despite the fact that she never saw his body or buried him.

25 The appellant claimed that the death of her husband robbed her family of support since he was the breadwinner who left behind orphaned children, Ashraf Kivumbi 1.4, Aisha Nambatya 12, Nurdin Semwan ga '10, Osama Senkuba Saidi 7 and Nusaiba Lunkuse aged 6. Hencc the Misccllancous Application for

compensation from the respondent. At the trial court, the Learned Trial Judge struck out the affidavit of Sabiiti Kateregga and passed a ruling in favour of the respondent. The Learned Trial Judgc found that the cvidencc on file did not support thc claim that Saidi Lutaalra was dcad, and that thc dcath in question was caused by the agents of the respondent.

Being dissatisfied with the above holding of the High Court, the appellant appealed to this Court on 8 grounds, namely;

### Grounds of Appeal.

1. That the Learned I'rial Judge erred in law and fact whcn he put the standard of proof for the appellant's miscellaneous cause to a level beyond reasonablc doubt. 10

- 2. That the Learned f'rial Judge crred in law and fact when he found that the death of the subject of the application had not been proved on the balance of probabilities. - 3. That the Learned T'rial Judge crred in law and fact when he found that the respondent's agents had not been proved as the cause of death of the subject of the application. - 4. That the Learned Trial Judge errcd in law and fact when he struck out the affidavit of Sabiiti Kateregga without hearing all the evidencc at first. - 5. That the Learned Trial Judge erred in law and fact when he failed to find that the state did not discharge its obligation under Article 20 (1) of the Constitution in

accounting for the death or otherwise of the subject of thc application.

- 6. That the Learned Trial Judge erred in law and fact when he found that the appellant's pleading that the state ignored the order of inquest was irrelevant. - 7. That the Learned Trial Judge crrcd in law and fact when he failed to find that the State's failure to obey the order of inquest was prima facie evidence that thc states agcnts killed the deccascd. - 8. That the Learned l.rial Judge erred in law and fact when he dismissed the appellant's case. 10

#### Representation

The appellant was represented by Stella Nakamya of M/s Rwakafuuzi & Co. Advocates while the respondent was

reprcsented by Wanyama Kodolo Principal State Attorncy of Attorney General's chambers. Both counsel relied on written submissions that were adopted by this court. 15

# Appellant's Submissions

Counsel for the appellant was critical of the Learned Trial Judge

- for relying on a standard of proof that was beyond rcasonable doubt in a civil matter. Counsel did not agree with the finding of the Learned Trial Judge that the respondent's agents did not cause of death of Saidi Lutaaya. Counsel went ahead to criticise the Learned Trial Judgc for striking out the affidavit of Sabiiti 20 - Kateregga without hearing all the evidence first. Counsel critiqued the findings of the Learned Trial Judge for failing to prove that the State had an obligation under Article 20(1) of the 25

Constitution to account for the death of Saidi Lutaaya. The appellant contended that the Learned Trial Judge crred in law and fact when he did not find the State liable for disobeying the order for an inquest into what might have killcd Saidi Lutaaya.

### Respondent's Submissions

Counsel for the respondent on the other hand invitcd this court to affirm the findings of the Learned Trial Judge. The respondent maintained that the Learned Trial Judge was correct 10 when he did not rely on hcarsay cvidence in rclation to thc alleged death of Saidi Lutaaya. Counsel argucd that the Lcarnccl Trial Judge rightly struck off the affidavit of Sabiiti Kateregga since he was not available for cross-examination. Counsel rclicd on Uganda v Isaac Newton Ojok HCCS No.148 of 1991. wherc

- 15 court held that "the legal position is that no evidence affecting a party is admissible against that party unless the latter had an opportunity of testing the truthfulness by cross examination." Counsel further agreed with the decision of the Learned Trial Judge when he rejected the Certificatc of the Causc of Dcath of - 20 Saidi Lutaaya since it was not annexcd to any affidavit; thc author was not called to prove the document; it was dated ayear and a half after the death of Saidi and thc certificatc crcated a contradiction on the deceased's occupation. Counsel for thc appellant submitted that there was no proof of the identity of - 25 the people who took Saidi Lutaaya and that a master cannot be made vicariously liable in matters whcrc thc plaintiff has failcd to identify the alleged agent of the master. Counsel argued that

the issue of the inquest rvas irrelevant to the application before the court and that the court had no duty to grant an order on matters not framed as issues before it. Hc relicd on Okello |ohnson v Lalam Angella HCCA No.013 of 2019. Counsel also supported the Lcarned Trial Judge for dismissing thc application since it was the most appropriate rcmcdy to grant in the circumstance as the applicant had failcd to discharge thc burden of proof demanded by law. Counscl prayed that the court dismisses the appeal with costs to thc rcspondent.

#### Consideration of the Appeal

I have carefully read the submissions of both Counsel and thc authorities cited. I have done a toothcomb re-appraisal of the record of appcal. I am alivc to the fact that it is thc duty of this

Court as a-l't appellate court to rcappraise all cviclcnce that was adduced before the trial court arriving at its own conclusions of fact and law while making allowance for the fact that the court neither saw nor heard thc witncsses. See Rule 30(1)(a) of the ]udicature (Court of Appeal Rules) Directions, S. I 1,3-10, Kifamunte Henry v Uganda SCCA No. 10 of 1997, The Executive Director of National Environmental Management Authority (NEMA) v Solid State Limited SCCA No.15 of 2015 (unreported) and Pandya Vs R \$95n EA 336. 15 20

It is with the above principles in mind that I now proceed to consider the grounds of appeal as set out in the Memorandum of Appeal. In my judgment, I commencc by detcrmining 25

Ground No.4 alonc. I will thcn procccd will Grounds No.1 ,2,3,5 and 8 jointly and finally with Ground No.6 andT jointly.

Ground No.4

That the Learned Trial |udge erred in law and fact when he struck out the affidavit of Sabiiti Kateregga without hearing all the evidence at first.

In the ruling of Justice Benjamin Kabiito dated the 19/4/2013, His Lordship expunged the affidavit of Sabiiti Kateregga from the court record since the declarant did not offer himself for cross-examination. In his ruling the Learned Trial Judge found that,

"In this matter Sabiiti Kateregga has deponed an affidavit in support of the Notice of motion dated 23'a April 2010. The said Sabiiti has not turned up for cross examination by the learned principal state attorney, who had applied to the court for leave to cross-examine him in respect to this affidavit evidcnce... Accordingly thc affidavit of Sabiiti Kateregga is struck out and expunged from the record of this application for failure to offer himself up for cross-examination as rcqu ired." 15 20

The Civil Procedure Rules SI 71-1 require that an application such as this be brought by Notice of Motion accompanied by an affidavit Order 52 Rule 3 Civil Procedure Rules. The court in Kaingana v Dabo Boubou (supra) found that, " Wherc an application is grounded on evidencc by affidavit, a copy of that affidavit intended to be used must bc servcd with the action. In such a case, the affidavit becomes a part of the application. The Notice of Motion cannot on its own be a complete application without the affidavit.. ."

- 5 In due course, courts have evolved to adopt the evidence by affidavit as examination-in-chicf, the purpose behind this bcing to ensurc a spcedy trial. F,xamination-in-chief is the examination of a witness by the party who calls them as under section L36 (1) of the Evidence Act. It is therefore my understanding that the expunged affidavit o1'Sabiiti Katercgga was sworn evidence - that amounted to a proper examination-in-chief. I also noted with concern that the Learned Trial Judge expunged the affidavit on the ground that Sabiiti Katcrcgga failcd to avail himself for cross examination. Having taken the stancc that the witness had to appear in court, the Learned Trial Judge was 10 - correct to require that such witness be cross-examined. Thc law on cross-examination of a deponent under Order 19 Rule 2 of the Civil Procedure Rules stipulates that, 15

"2. Power to order attendancc of deponent for crossexamination.

(1) Upon any application evidencc may be givcn by affidavit, butthe court may, at the instance of eithcr party, order the attendance for cross-examination of the deponent. 20

(2) The attendance shall be in court, unless the deponent is exempted from personal appearance in court or the court otherwise directs." 25

B

From the above rules of proccdurc, whcre it is ncccssary that ^a deponent of an affidar,'it is to be cross-examined, the law requires that this happens in open court unless the deponcnt is exempted from personal appearance in court or if thc court directs otherwise. The Learned Trial Judge was correct to expunge the affidavit once the witness did not appear for crossexamination. I{owevcr, it is worth noting that in this mattcr, thc appellant's counsel drew the attention of the court to reasons as to why his client would not be in a position to produce, Sabiiti Kateregga for cross-examination. Counscl argucd that it was not safe for Kateregga to appear and to give his evidencc in open court. In response to this the Learned Trial Judge rulcd as follows:

"sabiiti Kateregga, who had offercd a sworn affidavit in support of this application did not attend court to be cross examined on its contcnts, in spitc of assuranccs of thc court's protection to secure his appearance. I held, in ^a detailed ruling that is on record, that the affidavit of Sabiiti Kateregga, be expunged from thc rccord of the court, as he declined to offer himself for crossexamination, on his affidavit, as was required by court." 15 20

The affidavit of Kateregga raises issues which are important to note. Thc deponent not only witnesscd the state torturc thc deccased, but also he was a victim to the torture himself. In his expunged affidavit he affirmed that,

> "I was detained at JATT offices at Kololo in Novcmber 2007..that while at Kololo, I saw Saidi Lutaaya being taken

> > I in and I heard him crying for mercy in the next room and I know he was being tortured, as I had myself been tortured."

5 Taking into consideration the fact that Sabiiti Kateregga was both a victim and witness, the court should have accorded him the appropriate treatment under section 21. of the Prevention and Prohibition of Torture Act, 2012 which provides thaU

> "2l. Protection of victim, witnesses and persons reporting torfure,

It shall be the responsibility of the State to ensure that any person including the- 10

> (a)complainanf (b)witnesses; or(c)person making ^a complaint, whether the victim or noU

is protected against all manner of ill-treatment or intimidation as a consequence of his or her complaint or any evidence given."

The law imposes the duty to protect on the State. The protection of persons who have been victims and witnesses to torture is a 20 duty that touches upon a non-derogable right and should never be taken lightly. In this case, nowhere on the record do we see the State carrying out its statutory duty to protect a witness who was also a victim of torture. On the contrary the respondent's submission is dismissive, majors on minor issues and creates 2s issues out of non-issues. lt should be recalled that the appellant brings this matter as a bereaved, unsophisticated widow who cries out over the suspicious disappearance and death of her

husband. Rather than get thc requisitc attcntion worthy of such a serious issue she witnessed a flippant and un-empathetic respondent's counsel who spent a lot of time making light of otherwise grave allegations.

- 5 The Court in this casc could have given a more affirmative approach to witness protection rather than dismissivcly mention it in passing. The court appcared to side with the respondent without fully granting the appellant a right to be heard. In Soon Yeon Kong Kim Kwanga Mao v Attorney - General Constitutional Reference No.5 of 2007 the Constitutional Court acknowledged the need to protect witnesses as against pre-trial disclosure. 10

" A right to a fair hearing contains a right to pre-trial disclosure of material statements and exhibits. In an open democracy, courts cannot approve of trial by ambush. The right to a fair hearing envisages equality between the contestants in litigation. This disclosure is however subiect to some limitations like state secrets, protection of witnesses, protection of identity of informers or that due to the simplicity of the case, disclosure is not justified for purposes of a fair trial." 15 20

Every case has its own peculiar facts that make it distinct. First, Sabiiti Kateregga had alrerady disclosed his identity as a witness 2s in his affidavit. The possibility of intimidation and witness interference could not be easily ruled out. Secondly, Sabiiti had himself, been a victim of torture by what he believed were the

respondent's agents. Once beaten twice shy. Given the above facts, I am of the view that witness protection is a critical factor in such cases and the Learned Trial Judge should not have merely struck out the affidavit for procedural irregularitics without investigating the matter fully.

In Uganda v Commissioner of Prisons, Ex Parte Michael Matovu 11965U EA 5L4 the Court overlooked grave procedural errors such as failure to file a Notice of Motion, namc a proper respondent and reliance on defective affidavits. The court considered the fact that the liberty of a citizen was at stake and so decided to let substance prevail over form.

Matters involving victims of torture should be treated with utmost care and concern without leaving any room for intimidation or interference of witnesses. I am also of the vicw

that this matter ought to have been investigated fully. Ground No.4 of this appeal succeeds. 15

Grounds No.1-, No.2, No.3, No. S, No.8 -Grounds related to evaluation of evidence supporting the case.

Having concluded above that the Lcarned Trial Judge ought to have investigated the matter fully, I will not deal with issues in regard the standard of proof since, in my view, this matter was not give the requisite duc proccss. It is trite that evidence must be evaluated as a whole. Striking out the examination-in-chief of Sabiiti Kateregga amounted to a material irregularity in the proceedings which occasioned a miscarriage of justice. In the

circumstances, I would be most inclined to set asidc thc ruling of the learned trial judge and direct a retrial.

On the matter of a retrial, this Court in Rev. Father Santos Wapokra v Uganda Criminal Appeal No. 204 of 2012 held that,

5 "The overriding purpose of a retrial is to ensure that the cause of justice is done in a case bcfore Court. A serious error committcd as to thc conduct of a trial or thc discovery of new evidence, which was not obtainablc at the trial, are the major considerations for ordering ^a retrial. The Court that has tried a case should be able to correct the errors as to the manner of thc conduct of thc trial, or to receive other evidence that was then not available. Flowevcr, that must ensure that the accuscd pcrson is not subjccted to double jeopardy,by way of expense, delay, and inconvenience by reason of thc retrial. 10 15

An order for a retrial is as a rcsult of thc judicious exercisc of the Court's discretion. This discretion must be exercised with great care and not randomly, but upon principles that have bccn developed over time by the Courts: See: Fatehali Manji v R l1e66l EA 343. 20

Onc of thc considerations for ordering a rctrial is whcn thc original trial was illegal or defcctive; See: Ahmed Ali Dharamsi

Sumar v R 119641 EA 481. Thc Court must howevcr first investigate whether the irregularity is reason cnough to warrant an order of a retrial: Ratilal Shahur [1958] EA 3. Flowevcr, 25

before ordering a retrial, the Court handling the casc must address itself to the rule of the law that: "a man shall not be twice vexed for one and the same causc: Nemo bis vcxari dcbct pro eadem causa".

- 5 A re-trial must not be used by the prosecution as an opportunity to lcad evidence that it had not led at thc original trial and to take a stand different from that it took at the original trial. The prosecution must not fill up gaps in its evidence that it originally produccd at thc first trial: See: Muyimbo v R [1969] - EA 433. A retrial is not to be ordered merely bccause of insufficiency of evidence or where it will obviously rcsult into an injusticc, that is whcrc it will dcprivc thc accuscd / appcllant of the chance of an acquittal: See: M'kanake v R 119731 EA 67. Where an accused was convicted of an offcnce other than the 10 - one with which he was eithcr charged or ought to have bccn charged, a retrial will be ordered: Tamano v R [L95918A126. 15

Other considcrations arc; thc strcngth of thc prosccution casc, the seriousness or otherwise of the offencc, whether the original trial was complex and prolonged, the expcnse of the new trial to the accused, the fact that any criminal trial is an ordcal for the accused, who should not suffer a second trial, unless the interests of justice so require and the length of time between the commission of the offence and the new trial, and whethcr the evidence will be available at the new trial. Accordingly, each case depends on its particular facts and circumstanccs." 20 25

Furthermore, section 156 of the Evidence Act stipulates that,

"No new trial for improper admission or rejection of evidence. The improper admission or rejection of evidence shall not bc ground of itself for a ncw trial, or reversal of any decision in any case, if it shall appear to the court before which the objection is raised that, independently of the evidcnce objected to and admittcd, there was sufficicrrt evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision."

In the matter before us, the evidence of Sabiiti Kateregga was a crucial witness in decidirrg this case. He was a victim of torturc who also witnessed the torture of the deceased. He was the only

link between JATT and the deceased. Had the Learned Trial Judge given due consideration to his cvidence, he might have arrived at a different conclusion. I conclude that it is only just and fair to have this matter retried. I recommend thorough investigations into the issue of torfure and where necessary, witnesses be protected from perccived and actual harassment and danger. I would allow Grounds No.1, No.2, No.3, No.5, No.8. 15 20

Ground No. 6 &7

6. That the Learned Trial ]udge erred in law and fact when he found that the appellants pleading that the state ignored the order of inquest was irrelevant,

7. That the Learned Trial |udge erred in law and fact when he failed to find that the states failure to obey the order of inquest was prima facie evidence that the states agents killed the deceased.

Regarding the above hvo grounds, the Learned Trial Judge correctly ruled that the matter of an inquest was the subject matter in Miscellaneous Cause No.39 of 201-l and was not involved in this application. I would disallow Ground No.6 and 10 7.

In conclusion, given the circumstances of this case and findings that there were commissions and omissions on thc part of the trial Judge which led to failure to procure necessary witnesses; I would find that this appeal substantially succeeds. I would 15 send back the matter for a retrial.

I would make no order as to costs

Dated this \ -lf^ day of 2023 fdd,1/

## HON. LADY IUSTICE CATHERINE BAMUGEMEREIRE IUSTICE OF APPEAL

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CryIL APPEAL NO. 025 OF 2OL4

## SUMAIYA SAIDI LUTAYA:: : : : :: : ::::::::::APPELLANT

#### VERSUS

ATTORNEY GENERAL lrrrrraaaataa!aaaa laaatraaaalataarat RESPONDENT

(Appeal from the decision of the High Court of Uganda at Kampala (Civil Division) before Kabiito, l. dated 16h october, 2013 in Miscellaneous cause No. 63 of 2010)

# CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JA HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. MR. JUSTICE STEPHEN MUSOTA, JA JUDGMENT OF ELIZABETH MUSOKE. JA

I have had the advantage of reading in draft the judgment of my learned sister Bamugemereire, JA. I agree with it, and for the reasons she has given, I, too, would substantially allow the appeal and make the orders she has proposed.

Since Musota, JA also agrees, the court, by unanimous decision, substantially allows the appeal and makes the orders proposed in the judgment of Bamugemereire, JA.

# It is so ordered.

Dated at Kampala this 0r. t1' .... day of Elizabeth Musoke ......2023.

Justice of Appea!

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAIVIPALA

### CIVIL APPEAL NO. 25 OF 2OL4

(Arising from the ruting of Justice Benjamin Kabiito, J in HCMA No. 63 of 201a deliuered on 16th October 2013)

SUMATYA SAIDI LUTAAYA : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT

#### IrERSUS

#### ATTORNEY GENERAL RESPONDENT

## CORAM: HON. JUSTICD DLIZABETH MUSOKE, JA HON. JUSTICE CATHERINE BANIUGEMEREIRT, JA HON. JIISTICE STEPHEN MUSOTA, JA

### JUDGMENT OF HON. JUSTICE STEPHEN MUSOTA, JA

I have had the benefit of reading in draft the judgment by my sister Hon. Justice Catherine Bamugemereire, JA.

> ( \

I agree with her decision and the orders she has proposed.

| H<br>Dated this l<br>day of | 2023 | |-----------------------------|------| | | |

Stephen Musota JUSTICE OF APPEAL