[2024] UGHC 478

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT HOIMA**

### **IN THE MATTER OF THE HUMAN RIGHTS (ENFORCEMENT) ACT 2019**

#### **MISC. CAUSE NO.03 OF 2024**

**TWINE EMMANUEL:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

**ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

*Before: Hon. Justice Byaruhanga Jesse Rugyema*

## **RULING**

## **Introduction**

- [1] The Applicant herein brings this Application under **Article 50 of the 1995 Constitution of the Republic of Uganda; Sections 3, 4, 6(3) and 10 of the Human Rights (Enforcement) Act 2019; Section 33 of the Judicature Act Cap 13 and Rules 3, 5(1)(a) and (b), 6(1)(d), (2), 7(1), 8, 9, 10 and 11(1)(a) and (f) and (2) of the Judicature (Fundamental and Other Human rights and freedoms) (Enforcement Procedure) Rules, 2019** seeking; - 1. A declaration that the soldier that assaulted the Applicant on the 14th of December 2023 violated his fundamental human right to life guaranteed by **Article 20(2) and 22 of the Constitution of the Republic of Uganda 1995 as amended**. - 2. A declaration that the soldier's actions constituted inhuman treatment to the Applicant contrary to **Articles 24 & 44 (a) of the Constitution of the Republic of Uganda, 1995 as amended.** - 3. An order directing the Respondent to pay substantial general damages amounting to *One Billion Uganda Shillings (Ushs1,000,000,000/=)* for the human rights violations and transgressions, inconvenience and physical anguish occasioned to the Applicant - 4. An order directing the Respondent to pay punitive/ exemplary damages amounting to *Five Hundred Million Uganda Shillings (Ushs*

*500,000,000/=)* for the high handed, oppressive and unconstitutional conduct of its officer.

5. An order directing the Respondent to pay costs of the Application.

## [2] **Brief facts**

On the **14th day of August 2023** at **around 11am,** the Applicant was severely assaulted by a one **Private Ngabire Benjamin** a soldier with the Uganda People's Defence Forces who hit him with a stick, panga and benet which left him unconscious having sustained severe injuries which led to the loss of his left eye. The Applicant had been rushed to St. Henry Medical Centre, Hoima Kikuube District for medical attention but eventually lost his sight.

[3] The grounds upon which this Application is premised are set-out in the affidavit in support of the Notice of Motion sworn by the Applicant **Mr. Twine Emmanuel.** The Application was not contested since the Respondent did not filed an affidavit in reply despite having been duly served with the Application as per the affidavit of service on record dated 26th February 2024.

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

[4] 1. Whether the assault on the Applicant on the 14th of December 2023 by

**Private Ngabire Benjamin** violated his fundamental human right of

freedom from torture or cruel, inhuman or degrading treatment.

- 2. **Whether the Respondent is vicariously liable for the actions of Private Ngabire Benjamin.** - 3. **What remedies are available to the Applicant/Victim.**

# **Legal Representation**

[5] The Applicant was represented by **Counsel Simon Kasangaki** of **M/s Kasangaki & Co Advocates, Masindi.** The Respondent did not file an affidavit in reply and was not represented at trial. The matter proceeded ex parte. Counsel for the Applicant filed submissions in support of this application.

[6] I have read and considered the submissions on record in determining this application. Substantially, this application is uncontested. It is therefore deemed that the respondent by failing to file an affidavit in reply or to offer any arguments in defence to any question of law raised by the applicant, she fully accepts what is stated for the applicant and has no contest to the orders sought, see *Prof. Oloka Onyango & Ors Vs Attorney General (Constitutional Petition No.6/2014)* where the Learned Justices while considering **0.8 rule 3 Civil Procedure Rules SI 71-1** found that **every allegation in a statement of claim, if not specifically or by necessary implication denied in a pleading by an opposite party, shall be taken to be admitted.** The above notwithstanding, the Applicant still bears the burden to prove his case. For that reason, I will proceed to determine the application on the merits.

#### **Issue No. 1.**

*Whether the assault on the Applicant on the 14th of December 2023 by Private Ngabire Benjamin violated his fundamental human right of freedom from torture, inhuman or degrading treatment.*

- [7] According to **Sections 101 and 102 of the Evidence Act Cap 6**, the burden of proof lies upon a party who wishes court to believe in the existence of facts and the standard of proof is on a balance of probabilities. See **Maruri Venkata & 2 Ors Vs Bank of India (U) Ltd, HCCS No.804 of 2018,** where it was held that the burden of proof in civil proceedings normally lies upon the plaintiff or claimant. The Standard of proof is on the balance of probabilities. In this case, the Applicant has a duty to prove that the facts asserted exist and under this duty, the applicant has to satisfy this court the allegations that his rights to freedom from torture, cruel, inhuman and degrading treatment were violated by the agent of the Respondent who assaulted him causing loss of his left eye. - [8] This court in the case of *Mackay v Attorney General and 3 Others High Court Miscellaneous Cause No 12 of 2018* observed that;

*"Freedom from torture is one of the most universally recognized human rights. Torture is considered so barbaric and incompatible with civilized society that it cannot be tolerated. Torturers are seen as the 'enemy of mankind' and indeed, according to Article 44(a) of the Constitution of*

*Uganda "freedom from torture and cruel, inhuman or degrading treatment or punishment" is a non-derogable right. There are no exceptional circumstances whatsoever to justify torture."*

## See *Asp. Mugarura Steven Vs. CP. Herman Owomugisha & Anor H. C. Misc. Cause No.419 2017(Civil Division).*

[9] Every person is entitled to enjoyment of fundamental rights and freedoms guaranteed under the Constitution of the Republic of Uganda 1995 as amended. The Constitution of the Republic of Uganda 1995 in Chapter Four thereof elaborately provides for these rights. **Under Article 20 (1) and (2)**, the Constitution provides that;

*"Fundamental rights and freedoms of the individual are inherent and not granted by the state" and the "rights and freedoms of the individual and groups enshrined in this chapter shall be respected, upheld and promoted by all agencies of government and all persons".*

- [10] **Article 24 of the Constitution** provides that no person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment. Under **Article 50 (2) of the Constitution of the Republic of Uganda 1995 as amended,** any person or organization may bring an action against the violation of another person's or group's human rights. - [11] Counsel for the Applicant submitted that it is trite law that any injury to a person's dignity should therefore be condemned by the courts. The injured person should be compensated in damages. That the various named rights of the Applicant were violated by the Respondent's agent a one **Private Ngabire Benjamin** when he assaulted him on the 14th of December 2023. This violated his fundamental Human Rights guaranteed under **Articles 23,24,42 and 44(a) of the Constitution.**

# **Violation of the Applicant's right to freedom from torture and cruel, inhuman or degrading treatment or punishment.**

[12] The Applicant averred in paragraphs 4 and 5 of his affidavit in support of the Application that he was assaulted with a stick, panga and a benet by **Private Ngabire Benjamin** causing him severe injuries on his left eye which he totally lost. It is apparent that the Applicant was subjected to inhuman or degrading treatment in spite of the fact of absence of any evidence that he was armed and/or did put up any resistance.

[13] **Article 24 of the Constitution** guarantees freedom from torture, cruel, inhuman or degrading treatment or punishment. This right is non-derogable and absolute under **Article 44(a) of the Constitution.** Furthermore, **Section 2 of the Prevention and Prohibition of Torture Act 2012** defines torture as;

*"Any act or omission by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person by or at the instigation of or with consent or acquiescence of any person whether a public official or other person acting in an official or private capacity for purposes such as obtaining information or a confession from the person or any other person; punishing that person for an act he or she or any other person has committed, or is suspected of having committed or of planning to commit; or intimidating or coercing the person or any other person to do, or to refrain from doing, any act".*

- [14] **Section 2(3) of the Prevention and Prohibition of Torture Act** makes reference to the second schedule to the Act which sets out the acts constituting torture under three categories, namely; physical, mental or psychological, and pharmacological torture. Torture which is considered as one of the most serious crimes against humanity because of its profound violation of the moral and physical integrity of the individual, allegations of torture are grave and therefore, the applicant is required to adduce cogent evidence to prove such claims. In the present case, the applicant adduced physical and documentary evidence to prove the torture committed on him by the Respondent's agent and the personal injuries he sustained as a result. - [15] In paragraph 4 of the affidavit in support of the Application, it is asserted that the victim was beaten viciously by his aggressor occasioning him severe personal injuries and grievous damage to his left eye which was forked out. *See a photo of the Applicant's injured part of the eye attached to the affidavit in support of the Application marked "A" showing the extent of the total injury he sustained on his left eye*. - [16] The Applicant has also attached another *photo marked "B1", medical receipts marked "B2" and medical prescriptions marked "B3"* as evidence of treatment he underwent and partly the resultant cost of treatment

incurred as a result of the injuries occasioned to him by the Respondent's soldier. Under paragraphs 4 and 5 of the affidavit, I find that the Applicant has proved that he was subjected to cruel, inhuman or degrading treatment. By this evidence the applicant has discharged the burden of proof cast on him by the law to establish that he was assaulted by a UPDF Soldier and injured. I find that this violated his freedom from torture and cruel, inhuman or degrading treatment or punishment**,** see *Francis Tumwekwasize & 2 Others v Attorney General HCMC-0036 of 2009 [2010] UGHC 36.*

- [17] The evidence presented indicates that the Applicant was subjected to severe assault, resulting in unconsciousness and the loss of his left eye. Such actions undoubtedly contravene the fundamental human rights enshrined in the Constitution of Uganda, particularly the right to freedom from torture, cruel, inhuman, or degrading treatment as stipulated in **Article 24 of the 1995 Constitution.** The Applicant has discharged the burden of proof, demonstrating that his rights were infringed upon. - [18] The Applicant averred in paragraphs 4 & 5 of the affidavit in support that the Respondent's servant and/or agent **Private Ngabire Benjamin** severely assaulted him using a stick, panga and benet. As a result of the actions of the Respondent's servant and/or agent, the Applicant became unconscious and was rushed to a medical centre with grievous personal injuries that led to the loss of his left eye. These injuries were not contested by the Respondent. The fact of the assault of the Applicant/victim is therefore not in dispute. The personal injury was grievous and therefore, posed a threat to the Applicant's life. However, this is not to say that the loss of an eye constitute a violation of the Applicant's right to life as counsel for the Applicant submitted but torture or cruel, inhuman or degrading treatment. - [19] The 1st issue is in the premises found in the affirmative. The actions of the Respondent's agent **Pte. Ngabire Benjamin** were a violation of the Applicant's right to freedom from torture and cruel, inhuman or degrading treatment. ### **Issue No.2:**

# **Whether the Respondent is vicariously liable for the actions of Private Ngabire Benjamin.**

[20] The position of the law on vicarious liability is that where a servant or agent acting in ordinary course of his or her employment does or omits to do an act which leads to injury, damage or loss on the part of another, the employer or the master is liable, see **Security 2000 Ltd Vs Cumberland, CACA No.916 of 2014.** The Principal or employer cannot be held liable unless the agent or employee is liable. In relation to Government, *Section 3(1) of the Government Proceedings Act Cap 77* provides that;

> *"…..the Government shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject-*

*(a) in respect of torts committed by its servants or agents."*

- [21] Vicarious liability of the principal or employer is thus founded on the primary or direct liability of the agent or employee. Under that doctrine, the principal or employer is thus a joint tortfeasor with the agent or employee. The liability arises whether the acts are for the benefit of the employer or for the benefit of the servant or agent. In deciding whether the employer is vicariously liable or not, two questions are to be determined, namely; whether or not the employee or agent was acting within the scope of his employment; and whether or not the employee or agent was going about the business of his employer at the time the damage was done to the Plaintiff. - [22] On the other hand, when the employee or agent goes out to perform his or her purely private business, the employer will not be liable for any tort committed while the agent or employee was on a frolic of his or her own. (See: *Veitch E. in East African Cases on the Law of Tort (1972 Edition) at page 78.)* An act may be done in the course of employment so as to make a principal or master liable even though it is done contrary to the orders of the master, and even if the servant or agent is acting deliberately, wantonly, negligently, or criminally, or for his own behalf; nevertheless, if what he did is merely a manner of carrying out what he was employed to carry out, then his master is liable. See: *Muwonge v. Attorney General [1967] EA 17*; *Kaggwa Vincent vs Attorney General H. C. C. S No.391 of 2014(Unreported).*

- [23] In the instant case, the evidence clearly points to the fact that the Respondent's servant/ agent during the course of his duties severely assaulted the Applicant occasioning him serious personal injuries. - [24] The principle of vicarious liability holds the employer accountable for the actions of its employees or agents if those actions were performed within the scope of their employment. In this case, the soldier who assaulted the Applicant was acting within the course of his duties as a member of the UPDF in absence of any evidence that he was on frolic of his own. Therefore, the Respondent, being the employer of the soldier, bears vicarious liability for the actions committed by the employee. - [25] In the premises, the 2nd issue is found in the affirmative. The Respondent is found vicariously liable for the actions of the UPDF soldier who assaulted the Applicant.

### **Issue No.3:**

## **What remedies are available to the Applicant/Victim.**

#### **A declaratory order**

[26] The Applicant prayed for a declaration that his human rights were violated by the respondent's agent's assault on him causing him loss of his left eye. I find and issue a declaration that such treatment constituted a violation of the Applicant's right to freedom from torture and cruel, inhuman or degrading treatment or punishment

#### **General Damages.**

[27]General damages are awarded to compensate the Applicant for the physical and emotional harm endured. In cases brought under *The Human Rights (Enforcement) Act, 2019,* compensation is one of the reliefs granted to a victim of a human rights violation. It is provided for in **Section 9(3) of the Act.** Compensation in cases of quantum of damages is largely judge made. In theory the court may assess damages in a way it sees it in order to do justice to the parties, See *Robert Asiimwe Akanga & Another v AG & 2 Others HCMA 7 & 8 of 2022.* The law on general damages is that the damages are awarded at the discretion of the court and the purpose is to restore the aggrieved person to the position he or she would have been in had the breach or wrong not occurred, See: *Hadley v. Baxendale (1894) 9 Exch 341; Charles Acire v. M. Engola, H. C. Civil Suit No. 143 of 1993* and *Kibimba Rice Ltd v. Umar Salim, S. C. Civil Appeal No. 17 of 1992*.

- [28] The claimant must be compensated, therefore, not only for the injuries themselves but also for the effect they have had on him or her emotionally, intellectually and financially. This cannot be done, of course, simply by the payment of money; but money is all the law has to give, and so some arbitrary yet fair relationship has to be found between the injury and the compensation. Damages for pain and suffering compensate the claimant for the physical pain and the emotional suffering caused by the injury. Shock is included as anxiety, embarrassment and emotional injury, see *Uganda Commercial bank v. Kigozi [2002] 1 EA 305*). - [29] Under the law, general damages are implied in every breach of contract and every infringement of a given right. In a personal injuries claim, general damages will include anticipated future loss as well as damages for pain and suffering, inconvenience and loss of amenity. In assessing damages arising out of a constitutional violation, although infringement of a person's liberty per se imputes damage, a plaintiff needs to prove some damage suffered beyond the mere fact of unlawful assault; otherwise, the mere breach may only entitle a plaintiff to nominal damages. - [30] On the facts of the present case, having found that various rights of the victim were violated through the wrongful conduct of the Respondent's agent and/or servant, I find that the Applicant has established that he is entitled to general damages for such wrongful acts. What remains is for the Court to determine the extent of harm occasioned to the victim and making an assessment of the appropriate quantum of damages to be awarded to the Applicant. The Applicant however has not adduced evidence showing that as a victim he suffered from mental anguish, agony, misery, inconveniences and grief occasioned by the acts of the Respondent's soldier though this can be presumed in the circumstances of this case. - [31] The Applicant in his affidavit in support of the application stated hair raising moments during the ordeal. He suffered physical injuries which are visible on his body as shown by the photographs. He must have also suffered prolonged pain caused by the injury to his eye and the viscous assault on him. The Applicant in addition to physical injuries he must have suffered mental anguish, humiliation and embarrassment. I have taken stock of all

the above in considering the appropriate amount of general damages to award the Applicant.

[32] In the assessment of the quantum, Counsel for the Applicant referred to other awards to compare where possible or contrast; In *Issa Wazembe V AG HCCS 154 of 2016* Justice Ssekaana awarded **Ushs 120 million** to the plaintiff for torture that resulted in loss of his limb, *Robert Asiimwe Akanga & Another v A. G & 2 Others HCMA 7 & 8 of 2022 court awarded Ushs 200,000,000/=* for various forms of torture. This court therefore considers a substantially higher award of general damages to the applicant for the maim to his left eye he suffered. The Applicant prayed for enhanced general damages of **Ushs 1,000,000,000/= (One billion Uganda shillings only).** I find this figure quite high**.** General damages aim to compensate the Applicant for the physical and emotional harm suffered, including the loss of his eye and the associated trauma. Considering the severity of the injuries and the egregious nature of the violation, a substantial award of general damages amounting to **Ushs 300,000,000/= (Three Hundred Million Uganda Shillings)** is found appropriate.

#### **Punitive Damages**

[33] The Applicant also prayed that this Honourable Court awards punitive damages/exemplary damages. The Punitive/exemplary damages represent a sum of money of a penal nature in addition to the compensatory damages given for the loss or suffering occasioned to a Plaintiff. The rationale behind the award of exemplary damages is to punish the Defendant and deter him from repeating the wrongful act. They should not be used as means to enrich the Plaintiff, see **Sentongo Jimmy Vs J. Kabugo Ltd & Ors, HCCS No.342 of 2014.** The dictum by *Lord Mc Cardle J. in Butterworth v Butterworth & Englefield [1920] P 126 also states thus;*

*"Simply put, the expression exemplary damages means damages for example's case.''*

- [34] According to **Lord Devlin** in the land mark case of *Rookes v Barnard [1964] ALLER 367 at 410, 411* there are only three categories of cases in which exemplary damages are awarded namely; - **a) Where there has been oppressive, arbitrary, or unconstitutional action by the servants of the government;**

- **b) 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** - **c) Where some law for the time being in force authorizes the award of exemplary damages.** - [35] In the instant case, the Applicant has shown that his rights were grossly abused by the Respondent's agent and/or servant. In view of the severe assault occasioned to the Applicant/ victim by the Respondent's soldier, this court finds that exemplary damages ought to be awarded against the Respondent. The evidence before the court discloses high-handedness on the part of the Respondent's servant. The Applicant prayed for a sum of *Ushs 500,000,000/= (Uganda Shillings Five Hundred Million only)* as exemplary/punitive damages against the Respondent for the wanton acts of the agent and/or servant. I find this figure proposed by counsel for the Applicant high. I find a figure of *Ushs 40,000,000/= (Forty Million Uganda shillings only)* as appropriate exemplary damages in the circumstances of this case. Punitive/exemplary damages are warranted to deter future misconduct and punish the Respondent for the wrongful actions of its agent.

#### **Costs**

[36] In accordance with **Section 27 of the CPA**, costs are awarded at the discretion of Court and costs must follow the event unless for some reason the Court thinks otherwise. This Court awards costs to the Applicant being the successful party in this claim against the Respondent.

**Dated at Hoima this 21st day of June, 2024.**

**………………………………….. Byaruhanga Jesse Rugyema**

**JUDGE**