[2012] UGHC 443


## BEFORE: HON. LADY JUSTICE ELIZABETH MUSOKE

## JUDGMENT

**ji 1**

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This is an appeal against the judgment and orders of the Magistrate Grade I, Kamuli delivered on the 20th day of September 2006, in which he ruled in-- ¹ -5 favour of the 1st respondent, granting him general damages for pain, suffering, inconvenience and humiliation suffered at the hands of the 6 appellants who had assaulted the plaintiff.

## Background:

The case was initially filed in the lower court by the two plaintiffs, the 2nd—2U) plaintiff being the son of the 1st plaintiff. The 2nd plaintiff however did not

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follow up the case, so it was prosecuted by the 1st plaintiff who called the evidence of 4 witnesses. The plaintiff claimed that on the 24/7/2005 at the home of his son, Galubaale John at Bukose Nganda, Bugaya, the defendant/appellants unlawfully assaulted both him and his son, Galubaale (2nd plaintiff/2nd respondent) causing them severe pain, suffering, trauma ---5 and embarrassment. The plaintiffs claimed that the said acts were unconstitutional and/or unjustified for which they sought general damages from the defendants/appellants, jointly and severally.

**16** The defendants filed a joint Written Statement of Defence in which they denied all allegations made by the plaintiffs against them. They instead — 10 averred that it was plaintiffs who had destroyed cattle drip materials which had been secured by the village to repair and if there was any scuffle, it was between the respondents and the police officers who had come to arrest the respondents. They further contended that the plaintiffs' claim for assault was an afterthought and a fabrication after having failed to prove a case of trespass which they first pursued.

Three issues were framed namely:

- 1. Whether the plaintiff had cause of action against the defendants. - 2. Whether the plaintiff was assaulted by the defendants jointly or severally. - 3. What remedies if any are available.

The trial Magistrate answered all the issues in the affirmative and awarded the plaintiff (1st plaintiff) general damages of Shs. 700,000=; the 1st defendant who led the assault to pay Shs. 200,000= and the rest of the 5 defendants to pay Shs. 100,000= each to make the total of Shs. 700,000= awarded'as general damages. Interest was allowed at court rate from — C judgment date till payment, and costs to the plaintiff.

The appeal is premised on 5 grounds:

- 1. That the trial Magistrate erred in law and fact, when he failed to evaluate the evidence on court record thereby arriving at a wrong decision. - 2. That the trial Magistrate erred in law and fact, when he held that the appellants assaulted the respondents whereas not. - 3. That the trial Magistrate erred in law and fact, when he allowed the respondents' witnesses to give evidence in court without court's leave, thereby causing grave injustice to the appellants.^------— " - 4. That the trial Magistrate erred in law and fact, when he refused the appellants' material witnesses to testify in court.

Counsel on both sides filed written submissions. The appellants' Counsel argued both grounds that ¹ and 2 together, and grounds 3, 4 and 5 separately. The respondent's Counsel did likewise. It should however be'- cltb noted that although appellants were ordered to file their submissions on

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15/12/2009 and the respondents on 15/1/2010, the appellants Counsel did not file until their submissions till 01/03/2010. The respondents had, however, already filed theirs by the due date. No rejoinder was filed.

## Appellants' submissions:

**|JP** Regarding grounds ¹ and 2, it was submitted for the appellants that there was no record of proceedings and judgment produced before court to show that the respondents had won or appealed against the L. C. Ill judgment. By relying on such hearsay evidence, therefore, the trial Judge had reached a decision. Further, the respondent's evidence was full of contradictions as he told court that he was assaulted by use of hands, yet witnesses stated they saw him boxed and kicked by the appellants. Further still the trial Magistrate did not indicate the inconsistencies in the defence evidence which he cited in his judgment.

The appellants further submitted that the plaintiff never reported such a grave assault to the police authorities, as any reasonable man would have done. Neither was there any medical report or evidence to prove that the plaintiff was indeed assaulted; and neither did trial Magistrate indicate whether he saw scars or wounds left after the assault. Hence the finding that plaintiff was assaulted, without proof, was wrong.

The trial Magistrate failed to consider DW6, the arresting policeman's evidence to the effect that the appellants never assaulted the respondent; instead it was the 2nd respondent who resisted assault.

Further, the second defendant had abandoned the case, knowing the truth about the matter. Moreover, the plaintiff never cross-examined the defendants on the assault leaving their evidence unchallenged.

**10** Counsel for the appellants relied on Sections 100 and 102 of the Evidence Act Cap 6, to the effect that *"whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.''* (It is actually Section 101 — Burden of proof).

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

He further relied on Section 102 (S. 103) which states:

*IS "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 particularperson."*

Counsel concluded that although the burden of proof of the respondent who was the plaintiff in this case, to prove assault; he had failed even to adduce medical evidence to that effect, yet it was on the list of documents of the plaintiffs. The trial Magistrate shifted the burden to the Appellants and applied ^a higher standard on the appellants rather than the respondent as the law required in civil cases. Counsel also relied on *Management Training and Advisory Centre Vs Kakuru Kanza [1986] HCB 43* to state that evidence to prove a case on the balance of probable must be inferred not from pure conjecture which has no legal value, but from reasonable inference. He further relied on *Ugachick Poultry Breeders Ltd* l/s *Tadjjn Kara* ■" *IV T/A S. T. Enterprises Ltd Civil Appeal No. 2 of 1997* on the duties of an appellate court.

**I 3** Counsel for the respondents had a different view on grounds ¹ and 2 of the appeal. He emphasized that at the time of testimony, the respondent was ¹⁰¹ years old and that fact should be given weight as ^a person of that age " could not lie. The respondent had pinned down the appellants in court for having assaulted him. The time the assault happened was day time, and he knew the appellant very well before the incident. PW2, PW3, and PW4 had corroborated the evidence. The trial Magistrate had evaluated all the evidence and found that the old man has been brutally assaulted by the—Jo defendants in broad day light! He also observed that the respondent was truthful while the appellants' evidence was full of lies. He therefore reached a just conclusion.

This being a first appeal, the law imposes a duty on this court to reconsider the evidence, evaluate it itself and draw its own conclusions though it should bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound to follow the trial Judge's findings of fact if it appears either that ---S he/she failed to take into account particular circumstances or probabilities or materially failed to estimate the evidence or the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. See *Banco Arabe Espanol* Vs *Bank of Uganda SCCA No. ⁸ of 1998; Muluta Joseph Vs Katama Sylvano SCCA No. ¹¹ of 1999; Rwakashaija Azarious* ^I O Vs *Uganda Revenue Authority SCCA No. ⁹ of 2009.*

Counsel for the appellants rightly noted that the trial Magistrate came to the conclusion that the respondent was 'brutally assaulted' without medical evidence adduced to prove the same. Neither did the trial Magistrate state that he saw scars on the respondent to come to such a conclusion. Indeed medical reports had been listed in the plaintiffs' summary of evidence as part of the documents to be produced, but none was produced, yet no explanation was given for the absence of this crucial evidence. One wonders where the trial Magistrate based the finding that the respondent was brutally assaulted. On page J2 of his judgment, the trial Magistrate, after finding that the respondent's rights to property were grossly violated, also found as follows:

*"The evidence on record shows clearly that in the process the old man was brutally assaulted by the defendants in broad day light".*

He does not go so far as to state which particular evidence he referred to.

*(O* The court notes that the thrust of the lower court's judgment was based on alleged deprivation of property of the respondents by the appellants, in violation of Article 26 of the Constitution of the Republic of Uganda. This should not have been so, since the matter at hand involved assault of the respondent and not deprivation of the property. The trial Magistrate further went on the base his findings that *"the actions of the ¹st defendant and his group were unlawful, unconstitutional and gross abuse of the fundamental human rights of the plaintiff; an alleged deprivation ofproperty.*

It is clear that the trial Magistrate made the above finding without any evidence by the respondent that he had even taken a case to the Chief Magistrate, Jinja, and won. This is so even when in the appellants' joint written statement of defence dated 22/8/2005, the appellants/defendants had pleaded under paragraph 5 that:

*"It is further stated that the plaintiff's claim for assault is an afterthought and a fabrication them having failed to prove a case of trespass which they first pursued."* The above ought to have prompted the trial Magistrate to seek for evidence to prove that the respondent had won a case of trespass at the Chief Magistrate's Court in Jinja. That is if the issues of trespass were relevant in the assault case, which in my view, they were not. ^I also find that in the judgment, the trial Magistrate also did not point out which areas of the —-S defendant/appellants' evidence was full of lies.

**/o** On the allegation of assault of the respondent by the appellants, in his evidence, the plaintiff said the appellants, led by L. C. Ill the 1st appellant, had first assaulted his son then when he asked why they were doing this, they also beat him up and tied him up and put him on a bus, and later on a motor cycle to Police. The assault allegation, which lacked medical or physical evidence, at least needed corroboration. PW2 who was Asuvansi Byansi, and who said he knew the plaintiff/respondent as a grandson, testified mainly about the assault to the 2nd plaintiff, Galubaale, who abandoned the suit.

He pointed out that the 1st, 2nd and 3rd appellants had assaulted Galubaale. At the end of his testimony, PW2 said *"Luwabo was taken on the road and he was beaten. They used kicks and even made him fall down."* He does not State who assaulted Luwabo, the 1st respondent. Even in cross-examination by the defendants, he only pinned down the 1st appellant as having assaulted — ofo Galubaale.

Even PW3, Namuganya Teopista, in her evidence in chief only testified against the 1st appellant assaulting the 1st plaintiff/respondent. It was only during cross-examination that she said she saw the 4th and 5th defendants assaulting her people. She is a slaughter of the respondent.

*IS* PW4 was Binywera Samuel, the plaintiff's brother, who also testified he —3 saw the 1st and 2nd appellants at 2nd defendant beating up Galubaale, the respondent's son. He mainly testified about the assault to Galubaale, and at the end just mentioned that *"the bus came at the time Lubawo was being beaten, he was bleeding on the road side. It is Kapata who was beating him, and George Lubawo. They were beating the ¹st plaintiff. He was bleeding and was* —|O *handcuffed."* It is only this witness that has talked of bleeding or handcuffs for the 1st plaintiff/respondent. Not even the respondent/plaintiff testified to this. ^I therefore don't believe this witness's testimony. ^I also note that all the witnesses are close relatives of the plaintiff/respondent, making it very likely that they were just out to support the respondent-------- — "

The defence evidence was rejected in toto by the trial Magistrate as being full of lies, which were not pointed out. There is no indication of an evaluation of the evidence. All the defendants/appellants denied assaulting the plaintiff. DW6, DAIP Taylor Alex, the arresting police officer;- testified that he was detailed by O/C Basoga Patrick to visit scene of a reported crime of theft of poles. Galubaale (formerly 2nd plaintiff) said he was not ready to be arrested and became hostile and a scuffle ensued. The 1st respondent/-!⁵¹ plaintiff was also hostile so DW6 arrested him, and even

called for reinforcement. DW6 put the respondent on a bus to Police Station, but the plaintiff was too hostile to stay on a bus, with the bus driver ending up leaving them on the way. DW6 got a motorcycle to complete the journey. The two were charged with resisting arrest.

^I believe the evidence of DW6 when he says that as they were arresting — Galubaale a scuffle ensued, and he was hostile. The plaintiff too was hostile, so he was arrested. Any assault that could have occurred was as a result of the plaintiff's resisting arrest. ¹ cannot say that the assault was brutal, or that the plaintiff bled, as there is no medical evidence to support these allegations. ^I am therefore convinced that if the plaintiff was—/Q assaulted, it was in the process of effecting an arrest which the two were resisting.

However, there is evidence to pin down the chairman L. C. Ill seemed as having assaulted the respondent as he is mentioned by PW1, and PW3. ^I therefore find that apart from L. C. Ill, i.e. the ¹st appellant, there was no —/-S compelling evidence pinning down the rest of the appellants to the assault of the plaintiff; to the balance of probabilities. ^I therefore find that evidence only pins down the 1st appellant in this respect, and not to brutal assault but first assault. Since there were policemen who had come to arrest the respondent, there is no reason why the 1st appellant was assaulting the respondent, even in the process of arrest.

The thrust of the evidence of the plaintiff's witnesses dwelt on the assault of Galubaale; the would be second plaintiff who abandoned the suit. ^I find that the trial Magistrate did not properly evaluate the evidence before him, otherwise he would not have found the other appellants, apart from No. 1, responsible for assaulting the respondent.

## Ground 3 and 4

The appellant submitted that the respondent had a list of witnesses which he also lost confidence in and instead decided to call other witnesses who were not on the same list, that is to say, Avunansi Byansi and Namugaya Teopista. No leave was sought to introduce these. And the trial Magistrate — *¹0* relied on the evidence of these two to reach the final decision in favour of the respondent. This amounted to an ambush to the appellants and violation of appellants' right to a fair hearing. On the part of the appellants, however, they were not allowed to call the witnesses they wanted to produce even after requesting court. The appellants therefore never—/ 5 received justice.

any First of all ^I note that this matter was introduced at the appeal level. At the trial, there is no record of any complaint or objection being raised by the appellants regarding the introduction of the testimony of PW2, Avunansi Byansi and PW3 Namugaya Teopista. There is evidence on record that —2^ the trial Magistrate gave leave to the respondent to produce Namugaya. In case these witnesses were all cross-examined by the


defendants/appellants. There appears to be no miscarriage of just occasion by allowing the two to testify.

was no on On the submission that the appellants had witnesses who were refused to testify, the record does not bear this out. If anything, page 14 of the proceedings indicates that the 1st defendant informed court they had 3 witnesses and court adjourned the matter *"till 14/6/2006 for hearing of the ³ witnesses."* On the 14th June 2006, court started with evidence of DAIP Taylor, DW6. There wasnoindication on record that the defendants/appellants had produced any witnesses.

^I find that these two grounds lack merit. **—***ID*

## Ground 5

Counsel for the appellants submitted that the trial Magistrate acted with bias in disallowing the appellant's witnesses from giving their version of events/testimony and yet allowed the respondent to call additional witnesses. There was also ^a claim of bias when the trial Magistrate issued-—*^I S* a Warrant of Arrest against the 1st appellant without any legal basis. Counsel relied on *Franklin Vs Minister of Town & Country Planning [1948] AC 87* where it was held:

*"I could wish that the use of the word 'bias' should be confined to its proper sphere. It is proper significance in my opinion is to denote a departure from the standard of eyen handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a quasi judicial office, such as an arbitrator. The reason for this clearly is that, having no adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute". (Extracted from Stroud's Judicial Dictionary Vol. 1).*

Counsel for the respondent replied that the court had powers to compel a — ^I litigant to attend court.

Although court found that the trial Magistrate had not properly evaluated the evidence on record, ^I would not go as far as asserting that there was a departure from the standard of even handed justice which the law requires from those who occupy judicial office so as to constitute bias. The trial — Magistrate erred as any human or judicial officer could err, but there is no manifestation of bias, by the actions mentioned by the appellants.

^I find no merit in this ground as well.

In conclusion, ^I find that the trial Judge did not properly evaluate the evidence hence arriving at a wrong conclusion that all the appellants —

assaulted the respondent, whereas the evidence on record supports only assault by the $1^{st}$ appellant. The judgment as against the $2^{nd}$ , $3^{rd}$ , $4^{th}$ , $5^{th}$ , and 6^th appellants/defendants is therefore overturned, and only maintained against the 1^st appellant/defendant. The awards against the 5 other appellants are hereby overturned. The 1^st appellant will pay general $-\mathcal{S}$ damages to the respondent, Yokolamu Luwabo Shs. 200,000= as per the judgment of the trial court. The amount shall be paid with interest at court rate from the date of judgment till payment in full. $\frac{1}{3}$ of the costs of this appeal and $\frac{1}{3}$ of the costs in the lower court are also granted to the 10 respondent.

It is so ordered.

**Elizabeth Musoke**

**JUDGE**

1/06/2012

I Certify that this is a true Copy of the Original 3 1 AUG 20 Assistant / Denuty