[2024] UGHCCD 30

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA (CIVIL DIVISION) CIVIL SUIT NO. 33 OF 2013

| 1. NTALE MATHIAS | | | |-----------------------|--------------------------|-------------------| | 2. ZIWA MUSA | | | | 3. WILSON MAWEJJE | | | | 4. NALUBEGA MARY | $\overline{\phantom{a}}$ | <b>PLAINTIFFS</b> | | 5. <b>SEGUYA PAUL</b> | | | | 6. MWIZINI MUTALEMWA | | | | 7. MATOVU RONALD | | | | 8. KASULE TWAHA | | |

**Versus**

$\overline{\phantom{a}}$

**ATTORNEY GENERAL**

**DEFENDANT**

# BEFORE: THE HON MR. JUSTICE MICHAEL ELUBU

#### **JUDGMENT**

The Plaintiffs in this matter instituted this case against the Attorney General, who is the Defendant seeking general and exemplary damages and costs of this suit.

$\mathbf{1}$

'fhe facts constituting thc Plaintifls' causc olactiorVclaim against the Defendant as contained in Plaint arc that:

The plaintiffs allege that in the month of May 201 l, the Defendant's agents attached to the central Police Station (cPS) in Kampala maliciously and without reasonable cause, arrested them from their rcspectivc placcs of employment. 'l'hey were then detained at cPS.'l.he Plaintiffs were charged and remanded in Luzira prison where they stayed until they were releascd on bail. l'hat the Defendant's agents/servants tortured the Plaintiffs resulting in some requiring hospitalization and others medication. ]'hat in May 2011 thc Defendant's agcnls maliciously prosecuted the Plaintiffs in in the Chief Magistratcs courl olBuganda Road by laying false charges of Incitement to Violcnce contrary to Section 83 (l) ol thc penal Code Act Cap. 120. That later, all the Plaintifls wcrc relcased on non-cash bail.'l'he charges were eventually dismissed.

The Plaintiffs state that during their arrcst they wcre beaten indiscriminately and injured which affected thcir work lifc. 'l-hat from the timc of their arrest and detention they lost earnings. That valuable propcrty like shoes, clothing and money were also lost owing to the conduct of the Defendant's agents.

'fhat at this time, thc Plaintiffs who are marricd lost love, alfection and conjugal rights from thcir spouses. 'l'he Plaintills contcnd that the Defendant is vicariously liable for the actions of its servants, thc policc officers, who, at the time, were acting within the scope of their employment.

l-he defendant dcnied all the Ptainrilfs allegations in its wrinen Statement of Defence. It is stated that the Defcndant's agcnts have never arrested the plaintiffs. However, ifthc arrests took placc, then thcy wcre based on reasonable suspicion that the Plaintiffs had committed or werc about to commit offenccs. That the Defendant,s agents carried out thorough investigation into thc allegcd criminal activities of the Plaintiffs and they wcre prosecuted on that basis. l'hat the Defendant's agents are

legally and constitutionally mandated to prcvent, dctect, invcstigate and contain crime or potential criminals and their pcrceived actions and the actions against the Plaintiffs were done along that linc.

Sevcn ofthe eight ptaintilfs testificd. 'l'he Defcndant, on thc other hand, did not call any witnesscs.

Ntale Mathias, was PW I. IIe stated that hc was a trader and dealer in hardware with a shop called Emble I lardwarc located at Nakascro Market Street. That on the 29th of April 2011, he was in thc shop with Nalubcga Mary, Matovu Ronald, Kisitu John, Ssekidde Isaac, Mutalemwa and Naluyinda Hajarah. This was the day of the walk to work protests. 1'hat Uganda Policc and Military Policc officers entered and ordered them out of the shop. 'l'hey wcrc tied with ropes, beaten and matched to the CPS. At CPS, they were again bcaten by lJganda policc otficers.'l'hat they were then taken to the cells wherc they spcnt 2 hours. 'l'hat thcy were thereafter produced belore Buganda Road Court vidc Bug Road Casc No. 406 of201I which remanded them in Luzira Prison. Aftcr 4 l)ays thcy werc produccd and granted bail. I'hat he (Ntale) and the other ptaintiffs continucd reporting to Court until the case againsr thcm was dismisscd. PWI stated that hc lost sevcral properties including 3 buckets ofpaint that were poured as they were bcing arrcsted. PWI seeks compensation for his property.

PW2 was Ziwa Musa, a plumber. 'Ihat on 22,d day of a month he could not recall in 2Ol4 or 2015 hc was in a Makindyc bound taxi going homc. On that day there was a riot. 'l'hat he was put in a police truck and taken to CPS where he and others were beatcn with sticks and batons. 1'hat during thc beatings, they were informed that the reason for the bcatings was becausc they were involved in the "walk to work', riots. After 2 hours, they were movcd lrom CPS and produccd in Buganda Road Court which remanded them in Luzira Prison. Aftcr 4 days he was produced in court with the othcrs and grantcd cash bail of tJgx 500,000/-. 'l.hat at the timc of his arrest,

PW2 lost his work tools including a PPR Machine that connects pipes worth Ugx 240,0001,3 sizc 14 pipes cach worth 30,000/- and a threaded machine worth Ugx 180,000/=.

Kasule Twaha was PW3, a driver, who statcd that on the 29th April 201 I he was at Marvid Pharmaceutical on Luwum Streel wherc he worked as a driver. He did not know that therc werc demonstrations in thc city that day. 1'hc shop was closed and he was ordered to go home. thal thc Policc arrested him as one of the people who were demonstrating. 'l'hat with others, they were taken to old raxi park police post and beaten. That they werc transferrcd to cps and taken to Court and remanded. They endcd up appcaring I I times with no prosecution witness testi\$ring. The Magistrate statcd that thcy did not havc a casc to answcr. Kasule prayed for compensation for his arrest which was without just cause, and for time he lost while reporting to and fiom Court.

Nalubega Mary testified as PW4. l-hat on the 29th of April 2011, she was in the samc hardware shop at Nakasero Market strcet with pw I and the other witnesses, when military men came in and beat them severcly. -l-hc soldiers also destroyed merchandise in the shop. As thcy took thcm to cpS they were sub.iected to morc beatings with batons. 'l'hat they wcre dctaincd at cpS for a whote day and then taken to Buganda Road court which rcmandcd them in l,uzira prison. l'hat some of their properties were also taken. PW4 statcd the was traumatised by the detention, and thc beatings caused her high blood prcssurc. 'I.hat shc seeks compensation for malicious prosccution, the beatings, financial loss suffered as a rcsult olthe shop items spoilt. PW5 was wilson Mawejjc. It was his evidcnce that at 9.30 am on the 29rh of April ²⁰¹I, he was walking to Kiscnyi Markct to buy goats lor an introduction ceremony when military and Uganda policc men stoppcd him and inquired why he was on the road. Before he could explain himsell, he was bcaten with sticks and taken to the Policc booth in Kikuubo ncar thc old 'l'axi park. 'l'hcre, the beating continued. At

the time of his arrest, PW5 had Uganda Shitlings 907 ,5001- which was taken by the military and the policc officers. I{e was thcn translcrred to CPS and again beaten some morc. His Shoes worth 100,000/:, a belt worth 50,000/- and other properties were takcn. I-Ie was produced bclbrc Iluganda Road Court and remanded in Luzira Prison. Later hc was granted bail and continued reporting to court as directed by Buganda Road Court. PW5 sustained injurics and uscd Uganda Shitlings 102,5001 for medical treatment. IIe seeks compensation as highlighted in the plaint.

Mwidini Mutalemwa testified as PW6. I Ie statcd that he was a businessman dealing in hardware in a shop at Nakascro Market.'l'hat on thc 291r'of April 201l, while at his hardware shop at Nakasero, PW6 saw pcople running by thc street. Others entcred his shop. 'l'hat at the samc timc, military mcn in army uniform entered his shop and started beating him togcther with thc I'r, 4'h, 6,h, 9'h and lOth Plaintiffs who also worked in the samc shop.'l'he mititary mcn dcstroyed their supplies and items which included paint, glasses, oxidize, powder and jcss toilct wash. In the process, some of their propcrtics were lost or taken. 'l-hat the mititary personnel chased them out of the shop while subjecting them to sevcre bcatings causing a lot of pain to various parts of the body. 'l'hat the Military mcn handcd them to a group of 8 police officers who took them to CPS.'l'hat while bcing lakcn to CPS, they were subjected to more beatings using batons. 'l'hat thcy were dctained at CPS and then taken to Buganda Road Court which remanded them in l,uzira Prison. After 3 days pW 6 was granted bail. That on 7'r'March 2012, thc casc against them was dismissed fbr want of prosecution. l'hat he suffcrcd financial loss in his hardware busincss seeks compensation for malicious prosecution, thc bcatings, the financial loss suf'flered and for his supplies and items which were spoilt.

PW7 was Matovu Ronald. IIc stated that on the 29'h of April 201l, he was in the same hardware shop at Nakascro Markct strcet with the othcr witnesses when the military men came in and bcat them scvcrcly. 'l'hey also started destroyed

merchandise in the shop.'Ihey wcrc ordercd out ofthe shop. That as they were taken to CPS, the officcrs beat with batons. That thcy were detained at CPS for a whole day and then taken to Buganda Road Court which remanded them in Luzira Prison. He stated that after 3 days they were granted bail. On the 7'h March of 2012, the case against them was dismissed for want of prosecution. PW7 states that he was psychologically tortured and suflered financial loss in his hardware business. He seeks compensation for malicious prosecution, the beatings, for the financial loss sulfered as a result of the shop itcms spoilt.

#### Dcte rmination

#### Issues

'[he parties in this matter were granted leavc to file written submissions atthough it was only the plaintiffwho responded.

'Ihe issues for determination in this suit are:

- l. Whether the Plaintiffs werc maliciously prosecuted. - 2. whether thc Plaintifls wcrc subjectcd to torture, cruel and inhuman treatment. - 3. Whether the Respondent is vicariously liable - 4. Whether the Plaintifls arc enlitlcd to thc rcmedie ^s

#### Burden and standard of proof

Sections 1 0l and I 02 ofthe Evidcnce Act placc thc burden on the plaintiffs to prove the allegations contained in thcir Plaint.

Secondly, in civil cases such as this, thc settlcd degrcc or standard of proof is on ^a balance of probabilities as statcd in Miller vs Ministcr of pensions ll947l2 All ER 372:

1'hat degrcc is well settled. It must carry a reasonable degrec of probability, but not so high as is requircd in a criminal case. If thc evidencc is such that the tribunal can say: "Wc think it morc probable than not," the burden is discharged but, if the probabilities arc cqual, it is not.

#### Issue I

#### Whether the Plaintiffs were maliciously prosecuted,

'l'he Plaintiffs submission was that the tort ol malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. Thal Odunga,s Digest on Civil Case law and Procedure at page 5276 states that the tort of malicious prosecution is proved whcn thcse lour cssential ingredients are proved:

- l. The Criminal proceedings must havc bcen instituted by the Defendant. - 2. The Defendant must havc acted wilhout reasonable or probable cause. - 3. The Delcndant must have actcd maliciously - 4. The Criminal Proceedings must havc bcen terminated in the Ptaintifls favour. It is argued that therc is no doubt that criminal proccedings were instituted against the Plaintifl's and wcre terminatcd in the Plaintiffs' lavour. l'hat this alone proves two ingredients of thc tort of malicious prosccution. 'l'hat the only ingredients for which a determination by this court werc requircd were firstly, whether the Defendant actcd without reasonable or probable causc and secondly, whether the Delendant acted maliciously.

That the test for whethcr the Dclbndant actcd without reasonable or probable cause is stated in Dr. Willy Kabcruka vs AG Civit Suir No. t6}ll993 ll994lll KALR 64 where it was held:

"The question as to whethcr there was a reasonable and probable cause ofthe prosecution is primarily to bejudgcd on the basis of an objective test and that is to say, to constitutc reasonable and probable cause, the totality of the material within the knowledge of thc prosecutor at the time he instituted the prosecution whcther that material consists of facts discovered by the

prosecutor or informalion which has comc to him or both must be such as to be capable of satisffing an ordinary, prudcnt and cautious man to the extent of believing that the accused is probably guilty".

'l-he plaintiff submits that, had investigations bccn conducted by the prosecutor, he would havc arrived at the conclusion not to arrcst, dctain and charge the Plaintiffs. Regarding the ingredient of malice, thc Plaintifls contend that malice is established from the failure of the Defcndant to consult the law and or act prudently and cautiously fotlowing the arrest, detcntion and charge of thc Plaintiffs, against who the defendant had no cause to do so. 'l'hat this argumcnt is supported by the decisions in Gwagilo vs AG [2002]2 EA 381 (CAT) and Mugabi vs AG Civil Suit No. ¹³³ of 2002. -lhat the evidencc on the court record shows that both the police and the prosecutor did not carry out investigations or consult the law and did not act prudently when arresting, detaining and charging thc Plaintiffls.

'fhe Defendant did not file writtcn submissions.

#### Determination

At paragraph 20-{05 in the l9'r' Edition of ll/infield and Jolowicq on Tort, the elements of the tort of malicious prosecution are statcd to be:

- l. that the defendant prosccuted him; - 2. that the prosccution cnded in thc claimant's favour; - 3. that the prosecution lackcd reasonablc and probable cause; and - 4. that the defendant acted maliciously.

The Plaintiffs were under duty to show whether, on a balance ofprobabitity, each of these elements were cstablished in their claim. I will cxamine each in tum.

## l. that the defendant prosecutcd him.

### In Martin vs Watson [995] 3 ALL E. R. 559, it was held that:

"A person who in substancc was rcsponsible for a prosecution being brought against the plaintiff was liable to the plaintiff for malicious prosecution if the other essentials of the tort were fulfilled".

The above holding provides a uscful guide for determining the first element on who is held liable or accountable in a cause of action for malicious damage.

The Plaintiffs were charged at Buganda Road Chief Magistrates Court with the offence of incitement to violence contrary to Section 83 of the Penal Code Act vide Buganda Road Court Criminal Case No. 406 of 2011. 'I'he person (authority) that levelled charges against the claimant is liabte for malicious prosecution if all the other elements of the tort be present. 'l'here was no individual complainant named but incitement to violence being an offence against public order, a private individual as a complainant was not requircd to cstablish thc commission of the crime. The state could institute the proceedings bascd on availability of cogent evidence.

The record of proceedings in Buganda Road Chief Magistrates Court Criminal Case No. 406 of 201I (PE 2) and the charge sheet relied on by the prosecution (PE 1) would be sufficicnt to show whethcr there werc charges levelled against the plaintiffs.

In the charge sheet, PE l, the Ptaintiffs are named as accused persons in the following order:

- l. Ntale Mathias A26 - 2. Ziwa Musa ,A.3 - 3. Wilson Mawejje Al7 - 4. Nalubega }lary A27 - 5. Seguya Mary A11 - 6. Mwidini Mutalemwa A25

- 7. Matovu Ronatd A24 - 8. Kasule Twaha A2

The Charge was signed by the Uganda Police who instituted the proceedings on behalfofthe state. The proceedings show that all took ptea in the matter. From all these, it is evident that the Plaintilfs were prosecuted. Accordingly, I find that the first element of the tort of malicious prosecution is proved.

### 2, that the prosecution ended in the claimant's favour

## ln Street on To s (l3th Edn, Oxford University Press, 2012) at page 619 it is stated:

"In ordcr to sue, the proceedings upon which the claim is based must have terminated in thc claimant's favour. tiven though the claimant has been convicted ofa lesser offencc, or has had his conviction quashed on appeal or has becn acquittcd on a tcchnicality (for example, a defect in the indictment) this requirement is satisfied ... If, howcver, the conviction of the claimant stands, there is no possibility of obtaining a rcmcdy in this tort. As regards demonstrating a lavourable termination of proceedings, the claimant seems to satisf the test ifhe provcs that the defendant has discontinued the proceedings (but he cannot suc while thc proceedings are still pending)',.

'l'he record of proceedings, PE 2, shows that thc charges were dismissed for want of prosecution on 7th of March2012. A dismissal is a termination of proceedings in the favour of the claimants. 'l'hereforc, when Buganda Road chief Magistrates court criminal casc No.406 of 201 I was dismissed for want of prosecution it meant the that the prosecution endcd in the claimant's favour, thereby satisfuing the second element of the tort of malicious prosecution. # 3. that the prosccution lackcd rcasonablc and probable cause

When determining this issuc this court will bc guidcd by thc holding in Hicks vs Faulkncr (1878) 8 Q. B. D. 167 at 17l which described rcasonable and probable cause as:

"An honest belief in the guilt of the accused based upon a full conviction, foundcd upon reasonable grounds, ofthe cxistcnce of a state of circumstances, which, assuming thcm to be true, would rcasonably lead any ordinarily prudent and cautious man placcd in the position of the accuser, to the conclusion that the pcrson charged was probably guilty of the crime imputed."

1'he position above was followcd and in Kagane and others vs Attorncy-General and another [969] I EA 643 (IICK) wherc it was observed that:

"whether there was reasonable and probablc causc for the prosecution is primarily to be judgcd on the objcctive basis of whether the material known to the prosecutor would satisry a prudcnt and cautious man that the accused was probably guilty (Flicks v. Faulkner (l) adopted);

If it is shown to the satislaction of the judgc that a reasonable prudent and cautious man would not havc becn satisficd that there was a proper case to put before the court, then absence of reasonable and probable cause has been establishcd.

When Buganda Road Chief Magislrates Court Criminal Case No. 406 of 201 I came up for hearing, the prosecution called two witnesses. Both testified on the l3th of October 201 l. PW I who was a police officer, stated that hc arrested 60 people who were shouting and rioting around IIotel Equatorial. That only one (called Mwanie Paul) ofthose 60 persons was prcsent as an accused person in court on that day.

'I'he second witness was also a policc officer who said that on that day he was in charge of a patrol car. That he was directed to drivc to Kiseka market and transport suspects to CPS.'l'hat hc pickcd 8 suspccts lrom Kisseka market and took them to CPS as instructed. It was his cvidcnce that thc 8 pcople he carried on that day were not in court as accused persons.

The prosecution did not call any othcr evidence after this, and after six more adjoumments, the matter was dismissed on the 7'h ol March 2012 for want of prosecution.

None of the ptaintiffs was pointed out by any of the prosecution witnesses nor did they mention any of the areas the plaintills wcre arrested from as being involved in the riots. Ihe plaintiffs had testified that they were arrested in Makindye, Kisenyi and Market Street near Nakesero.

The plaintiffs here contcnd that the stalc had no rcasonablc grounds on which to prefer charges against them. l'his would mcan that the state had no evidence or basis on which to suspect or charge them ofany offcnce. In my view it was not necessary to adduce evidencc in proof beyond rcasonable doubt, that an offence had been committed. what was required was reasonablc grounds to believe that the plaintiffs committed the crimes charged. The delendant should have offered some evidence based on the law, investigations or reasonable suspicion showing the basis for the arrest and prosecution ofthe plaintiffs. As it stands nonc was offered.

A lack of evidence in the lowcr court may cxplain why no defence evidence was brought forward in this suit.

clearly, there were no grounds on which it could be imputed that the plaintiffs had committed any offence. In the result I find that the 3'd element olthe tort of malicious prosecution, that the delendant lacked rcasonablc and probable cause to prosecute, has been established.

# 4. That the dcfendant actcd maliciously.

l'he last element required to prove this tort is that the plaintiffs had the burden to show that thc charges were institutcd maliciously. In thc l3th Edition of Street on Torts (Oxford University Press, 2012) at pages 621-622,, the learned authors state that:

"The claimant must also provc malice on the part of the defendant. In this context, this means that hc must show 'any motivc other than that of simply instituting a prosecution lor thc purposc of bringing a person to justice".

In Gwagilo v Attorney-General 120021 2 EA 381 thc Ilast African Court of Appeal considered thc element of malice in thesc tcrms:

Malice in the context of malicious prosecution is an intent to use the legal process lor some other than its legatly appointed and appropriate purpose. The Appellant could provc malicc by showing, for instance, that the prosecution did not honestly believe in thc case which thcy were making, that there was no evidcnce at all upon which a rcasonable tribunal could convict, that the prosecution was mounted lor a wrong motivc.., etc".

In Olango Vs Attorney General & Kampala Capital City Authority Civil Suit No. 681 of20l6, the Court held thal:

Malice in criminal proceedings can be establishcd by tooking at the peculiar circumstances of every case or infbrence from circumstances and cannot be proved by direct evidencc. Malicc means indircct and improper motive. That is to say; intent to use the legal process in qucstion for some other than it's legally appointed and appropriate purpose. Thc plaintiff must show that the prosecution was "motivatcd no1 by desire to achicvc justice, but for some other reason". Zainal bin Kuning Vs Chan Sin Mian Micheal ltg96l ² SLR(R) 8s8

Malice can be established through enmity, retaliation, haste, omission to make due and proper inquiries, recklessncss, harassment, personal spite, sinister motive e.t.c are somc of the itcms which are rclied upon for proving the malice".

As rightly pointed out, it is not likely that one can adduce direct evidence pointing positively to the fact that thc defendant was motivatcd by malice. 'I'he court is left to rely on an evaluation of the circumstances. In this case the victims were picked from their shop. No evidence to rebut this was adduced. 'Ihey wcre arrested by several officers, any of who would have testified regarding thcir circumstances of arrest. None was produced at their trial in Buganda Road Court. It is in the public interest that a prosecution is regarded as a serious procccding aimed at righting a wrong, or punishing the commission of an offence. It should not be initiated or terminated casually. Where that happens, an infercncc may be drawn that, from inception, the prosecutor did not believe in the case that they initiated.

Additionally, when this claim was made, the dcfendant did not call any rebutting evidence nor did they bother to file submissions. 'l'hc circumstances here certainly point to an utter recklessness and disregard for the prosecution in the lower court or the defence in this court.

This court has already established that therc was no basis for the charges, and from the circumstances as stated, it is clear that no propcr inquiries were made before putting these plaintiffs on trial for a wholc year. 1'hc decision to prefer charges in circumstances where no evidencc has been fiound or cven investigations carried out, in an utter disregard for the law, can safely be inferred to be malicious in the clrcumstances.

In the result thereforc I should that thc plaintifls havc proved the last element of this tort.

#### Issue 2

Whether thc Plaintiffs werc subjcctcd to torturc, cruel and inhuman treatment. It was submitted for the Plaintiffs that torture, according to Section 2 ( I ) (b) of the Prevention and Prohibition of Torture Act 2012 is any act or omission by which severe pain or suffering whcthcr physical or mental is intentionally inflicted on ^a person by or at the instigation of or with the conscnt or acquicscence of any person whether a public official or other person acting in an official or private capacity for purposes for punishing that person for an act he or she or any other person has committed or is suspected of having committed or olplanning to commit. It is argued farther that Article 24 of thc Constitution of the Rcpublic of Uganda guarantees lreedom from torture, cruel, inhuman or degrading treatment or punishment. And that under Articte 44 (a) ofthe constitution, frecdom from torture is absolute and prohibited. l'hat in the case of Issa Wazcmba vs AG HCCS No. 154 of 2016, the Court held that:

"F'or an act to amount to torturc not only must therc bc a certain severity in pain and suffering, the treatmcnt must also be intentionally inflicted for the prohibited purposc".

The Defendant did not file written submissions.

## Detcrmination

'fhis court is in full agreemenr with thc position ol the law as cited by the plaintiff. The provisions show that the plaintills wcre under a duty to properly demonstrate that they suffered severe pain and suflcring as a result ofthe actions ofthe defendant. ]'he Plaintiffs testified that upon their arrcsts, they werc subjected to beatings by the police and military personnel using batons. 'l'hesc bealings continued from arrest right up to their detention at the Ccntral Police Station. The Plaintiffs stated that as a result of the beatings, thcy sustaincd injurics and some were hospitalized while others developed complications such as high blood pressure.

Cogent evidence to prove the above allegations must be adduced. The plaintiffs state they were hospitalised aftcr thcy were brutaliscd. None of them produced any corroborative evidence to prove those claims. In the case of Wazembe (supra) relied on by the plaintiffs, a medical doctor (pathologist) testified in proof of the plaintifls claims.

Evidence of this kind, espccially regarding extcnt of damage, must be direct and cannot be inferred. 'l'here should be a specialiscd asscssmcnt of the severe pain or suffering whether physical or mental allegcdly suffered by the claimant.

Other than raising the allegations of torture, the Plaintilfs did not adduce other evidence (medical or otherwise) to prove their claims. In my view, the ptaintiffs have fallen short of establishing, on a balance o I probabitities, that any ofthem suffered severe pain or suffering whethcr physical or mental, mcted on them by agents of the defendant.

In a case cited by the plaintiffs, Ireland vs Unitcd Kingdom ECHR Application No.53l0/71, the European Court of Iluman Rights stated,

the distinction betwcen 'l'orture and inhuman or dcgrading treatment lies in the difference in the intcnsity of sulfering inflicted. In deciding whether certain treatment amounts to torture, the court takes into account factors of each individual case, such as thc duration oftreatment, its physical and mental effects, and age, sex, health and vulnerability olthe victim.

It is clear that a properly assesscd intensity ol suflcring indicating the extent of damage or injury inflicted or sulTered is a key consideration in making ^a determination on whcther an individual has suffercd torture. I agree with the observation madc in Issa Wazcmba Vs AG HCCS No. 154 of 2016 that:

'l'he courts shoutd apply a vcry strict tcst when considering whether there has bccn a breach ofan individual's right to frccdom liom torture or inhuman or degrading treatment. Only worst cxamplcs arc likely to satisff the test.

In light of all the above, it is my finding that the plaintiffs fell short in this regard and fail on this issuc.

## Issue 3

## Whether the respondent is vicariously liablc

l'his issue was most relevant in regard to the qucstion oftorture. Because the plaintiff failed to prove the prcvious issuc, I do not find it ncccssary to deal with this question.

#### Issue 4

# Whether thc Plaintiffs arc entitlcd to thc rcmedics

'l'he Plaintiffs sought the lollowing rclicfi:

#### General Damages

'llhe award of Gencral damagcs is madc at thc discrction olcourl in respect of what the law presumes 1o be thc natural and probablc consequcnce of the defendant's act or omission (see James Fredrick Nsubuga v, Attorney General, H. C. Civil Suit No. I-l of 1993 and Erukana Kuwe v. Isooc Putrick Matovu and another, H. C. Civit Suit No. 177 of 2003). 'l'hc objcct of thc award ol'damages is to give the plaintiff compcnsation fbr the damagc, loss or injury hc or shc has suffered. (Ret'er to Robert Coussens vs. Attorney Gcneral, SCCA No.08 of 1999). General damages do not need to be spccifically plcaded, howevcr, thc plaintiff must plead any material facts giving rise to a claim for gencral damages, and must provide such evidence as is necessary and appropriatc to support such a claim. 'l'hc Court is alive to thc

requirement that in assessment ol the quantum of damages, it should be mainly guided by the value of thc subjcct mattcr, thc economic inconvenience that the plaintiff may havc been pu1 through and thc nature and extent of the injury suffered (See Uganda Commercial bank Vs Kigozi [20021 t EA 305).

The Plaintiffs testified that during their arrcsts, their property which included paint, glasses, oxide powder, jcss toilet wash, Plumbing Machincs, pipes, tools and money were lost. The Plaintiffs also testilled that they underwent psychological torture as ^a result ol'the above mentioncd cvcnts.

I have taken into account the dctcntion of the plaintiffs. 'l-hey were also business persons and time away from their busincss endcavours to attend court must have affected their enterpriscs thereby visiting economic inconvenience and damage on them. They had to attend court proceedings lor close to one year.

General Damages are awardcd at the discrction of thc Court.

In view olthe damage suffered by the ptaintiffs, this court shall award each ofthem three million Uganda Shillings as General Damages.

# Punitive Damages

Exemplary (or "punitivc") damages arc damages awarded against the defendant as a punishment, so that the assessment goes beyond mere compensation of the claimant.

In Rookes vs Barnard [1964] AC ll29 at 1221,U9641I All ER 367 it was stated that:

" English law recognised the awarding of exemplary damages, that is, damages whose object was to punish or deter and which were distinct from aggravated damages (whereby the motives and conduct of the defendant aggravating the injury to the plaintiffwould be taken into account in assessing compensatory damages); and there v)ere two categories of cases in which an

award of exemplary damages could serve a useful purpose, viz, in the case of oppressive, arbitrary or unconstitutional action by the servants of the governmenl, and in the case where the defendant's conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff,.

The principles stated in Rookes vs Barnard abovc havc bcen cited with approval in Obongo & another vs Municipal Council of Kisumu [971] EA 9l and several Ugandan cases such as Fredrick J. K. Zazbwe Vs Orient Bank & Others Supreme Court Civil Appcal No. 4 of 2006.

The actions in this case merit an award of excmplary damages.

Each of the Plaintiffs is accordingly awarded two million shitlings as Exemplary Damages.

## Interest

Section 26 (2) of the Civil Procedure Act Cap 7l gives this court wide discretion to grant interesl on a decree lor payment of money.

In Lwanga vs Centenary Bank [ 19991 EA 175 the Court of Appeal held that:

"Section 26 (2) of the Civil Procedure Act empowered the court to award three typcs ofinterest: interest adjudgcd on the principal sum from any period prior to the institution of thc suit, intercst on thc principal sum adjudged from the date olfiling the suit to thc date olthc decrcc, and interest on the aggregate sum from the date of the dccrec to the date ofpayment in futl"

The General and Exemplary Damagcs will attract an interest of 60% from the date of Judgment until payment in full.

$\pmb{Costs}$

The Plaintiffs are awarded Costs of this Suit.

$...$

Michael Elubu $\boldsymbol{Judge}$

$\boldsymbol{19.01.2024}$