[1995] UGSC 10

# IN THE SUPREME COURT OF UGANDA

### AT MENGO

(CORAM: ODOKI - JSC, ODER JSC, PLATT JSC)

### CIVIL APPEAL NO. 2/93

# BETWEEN

YEKOYAKIMU MWENE HYABENE s:::::: t:::::::::::: APPELLANT VERSUS

THE ATTORNEY GENERAL ::::::::::::::::::::::: RESPONDNET

### JUDGMENT OF PLATT - JSC

son or not. Court. The Appellant Mr. Hyabene brought a suit of great importance, which was not articulated in the correct legal framework. It concerns the plight of a father who assiduously sought to safeguard his son, the latter having been arrested on a charge of capital robbery, and detained at Luzira Prison. The Appellant had travelled to Kampala from his home near Mbale on numerous occasions, first to try and see his son, and later to apply for bail, and, later on, again to try and persuade the authorities to release his son. Finally the son was released; but the misery of the end of the story is that his son was killed after he left prison. Is there any cause of action, in which the or his father(now Appellant), can claim for the three years that his son spent in custody, and for the travelling expenses of the Appellant incurred in trying to obtain the son's release? The trial Court thought The plaint was dismissed. The Appellant appeals to this

The facts accepted by the trial Judge were perhaps difficult to asertain, because this case followed that

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he receive any proper directions, evidence and put forward a defence of little merit. strange stylo of putting before the Court as little evidence as possible. The Appellant did his best; but being a layman ho neither' knew fully what ho was doing, nor did The State called no

In these difficult circumstances the facts Wanyum, pleaded were as follows. At first the Appellant brought the suit in his own name and that of his son Stephen They sued the Attorney General for damages, because Stephen had been wrongly arrested and falsely imprisoned, and in addition had been wrongly assaulted. The Plaintiffs protested tliat Stephen had boon arrested by the Uganda Police, acting in the course of their duties, and detained unlawfully in custody from 6th Ilay 1936 until ho was released in September 1969, During all this long period the Appellant had sought bail without success, and had travelled constantly from Lbalc to Kampala every fortnijit, to bo present when his son warn due to appear in Court, The appellant incurred Great expenses for transport and subsistence in his travois to Court, and, in addition, the Plaintiffs had suffered fear and distress of mind, and their liberty had been infringed, For all of this, the Plaintiffs claimed damages.

On 21st larch, 1990, the Appellant amended the plaint\* I do not Iznow what had happened between the date of the release of Stephen, and the date of the first plaint namely 9th February, 1990, except that, the Statutory Notice was Given on 27th October, 1909\*

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Wanyama. and distress. But the body of the plaint remained the same. The detention of his son was alleged to be unlawful, and as a result, the Appellant claimed damages for loss in travelling and subsistence and damages for fear I presume, without finding as a fact, that Stephen had disappeared or had died, before the plaint was amended on 21st March 1990. The amendment excluded Stephen

was not liable because the Police had not been acting in the course of their duties. The defence was a. denial of every fact alleged; and alternatively, it was said that the Attorney General

The Plaintiff gave evidence. He recounted the facts that Stephen's wife had reported Stephen's arrest He applied for bail which was refused. He appealed. his son. But That Stephen was released he disappeared and died. register in Mengo, and found the charge against There may have been as many as six cases. the one in particular in this case was K. Cr.c. 157 of 1986, concerning one Mwanga Kigongo and Stephen Wanyama, It was in relation to this case, that the Director of Public Prosecutions directed that there was no case to the Appellant, and called upon him to go to Stephen's aid. The Appellant responded. At first the Prison authority would not allow the Appellant to see his son. against Stephen, and that he should be released. was written on 19th April 1989(Exh. P4). It appears that this did not take effect until later. Then when On the second visit that was possible. He studied the

The learned Judge seems to have misunderstood the letter of the Director of Public Prosecutions, as the Appellant complains in his menorandum of appeal. The Director had directed that both the charge of robbery and the charge of receiving stolen property should be withdrawn against "A.2." From the D. P. P's letter, "A.2" would represent Stephen Wanyama. It was Kigongo against whom the receiving charge was retained. The Director headed his letter as Uganda Vs Al. Manga Kigongo, A2 Wanyama Stephen. Then he continued:-

> "Evidence assembled is not sufficient to warrant the prosecution of A2 as<br>charged or for any other offence on the bases of evidence available at all. You are hereby instructed to amond the charge against A.1 and charge him of receiving and retaining stolen property<br>C/S 298 of the Penal Code Act. Withdraw<br>the charge against A.2 under section 119<br>of the MCA and set him at Amberty forthwith, unless he is being otherwise lawfully held on other charges."

The learned Judge understood that instruction as follows: $\leftarrow$

"Following the D. P. P's said letter to the<br>Plaintiff Exh.4 the D. P. P instructed the<br>Director of C. I. D. to withdraw the charge<br>of robbery against the son of the Plaintiff.<br>The charge of receiving and retaining stolen property was allowed to stand."

If the inference to be drawn from that statement is that the charge of receiving stolen property was allowed to stand against the Plaintiff's son, then that is a serious misdirection. Later on the learned Judge commented that the $D_{\bullet}P_{\bullet}P_{\bullet}$ only withdraw the charge of robbery in which there was not sufficient evidence to warrant prosecution. Consequently it is clear that the learned Judge misunderstood the position of Kigongo for that of Stephen Wanyama, on the basis of the D. P. P's letter(Exh.4). That is what the Appellant contends.

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But there is the further complication of some five other charges remaining against the Appellant's son. The learned Judge made this further finding:-

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"The evidence shows that only the charge of robbery was withdrawn for lack of<br>sufficient evidence. The other charges of receiving and retaining stolon property<br>are still pending. Since some of the<br>charges are still pending the Plaintiff<br>cannot be heard to say that the proceedings<br>have terminated in his favour."

It appears therefore that the learned Judge's attention had gone on to the document from the Assistant Registrar to the Chief Magistrate Buganda Road Court. Its date is uncertain, as far as the copy of the exhibit goes. It lists five cases in which "S. Wanyama" was accused. They are cited as $400/87$ , $162/33$ , $667/88$ . 1289/09. This letter was put in by consent. The Appellant explained as follows:-

> "I have applied for copies of the case files, but I have not got them. They<br>were about five cases. The case numbers are listed on the letter dated 11/1/91, that I received from the Assistant Registrar High Court. I wish to tender the said lotter.

Tendered without objection and Court. marked $P3$ ."

This letter is of course valueless. It is a request from the Assistant Registrar, who never gave evidence for case files to be produced as exhibits but which were never produced in Court, nor to the Appellant. Upon what basis is that letter(Exh. P3) proof of the existance of charges against the son of the Appellant? The Appellant was good enough to acknowledge that he had some information about them; but when trying to ascertain the truth, the Court never provided him with exhibits. The letter (P3) is simply an administrative request for the

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exhibits ^s it is no warrant of any sort that the writer knew that the exhibits existed, or that he represented, in truth, that the charges had been preferred against the son of the Appellant. Ex. P3 is merely a hearsay statement for another Court to act upon. As far as tho Appellant is concerned it merely showed that he had asked tho authorities for evidence, and they had refused. That was no guaranttee of truth of the allegations of charges against his sonj otherwise the Court or the defence would have produced the files. He was therefore fully entitled to rely upon his son's release in Ex P4 as being a complete release.

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in custody thereafter, in 1937, 1933, 1939. : offences could all have boon committed before 1936 and then carao to light after Stephan had been remanded in custody from 1936 to 196'9. It was not possible for Stephen to have committed these offences while he was in custody. Ho explanation was given to resolve this difficulty. It is to be noted that the charge which the D. P. P attended to was one of 1936. The son of the Appellant was Tho other alleged charges wore filed It is difficult to believe that these

any sort? However, if the State wished to roly upon those charges from 1937 to 1939, then the State could have proved then. The State called no evidence at all. Hence, the propor inference was that there .was no charges in fact, and the only one which was operative was the one upon which the D. P. P ordered the release of the Appellant's son. If such other charges were so important and wore in existence,\* why was the Appellant released in 196'9 witliout any trial of The learned Judge was quick to point out that the

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**I** Appellant's son was released, subject to any other lawful cause to hold him. Why then was he released?

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arrest him\* Appellant when pleading for bail, as the Judge noted, was that tho Police wanted a bribo to release Stephen. That fact was not gone into at tho trial, and I say no more about it. no evidence on that point. there was no evidence at all against tho Appellant's son, all that can be said now is, that no reason was proved to The allegation in tho affidavit of the The inescapable conclusion is that the Appellant's son was not held upon any serious charges, and for a long time - three years. That is not to say that there was no reason at all to arrest him. The State, however, called Hence as tho D. P. P decided tliat

Hie main complaint of the Appellant in his lone memorandum of appeal, was that his son was kept in custody for a long time without any Oood cause\* In my opinion, tho Appellant is correct on that point. **Article 15** of the Constitution provides for fair trials within a reasonable time. According to the affidavits on the record, tho son of the Appellant had purchased a travelling bag **which** had been suspected to have been stolen. Tho seller was named and found and also arrested. If those facts are time, then tho investigation had been completed within a few weeks. It cannot surely have been necessary to keep the Appellant's son in custody after tho arrest of the seller of stolon property, and certainly not for tliree years. Supposing that tho affidavits should not be looked at, then three years without trial for capital robbery, or alternatively receiving

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those charges. stolen property, cannot, in my opinion, even without reference to authority, be a reasonable time. In the normal run of things, three months in more than sufficient to investigate There were apparently no complications, which would extend the time. The State's view of this aspect was not made clear.

But from opinions in other jurisdictions, including Zimbabwe, the factors to be considered are

- (a) The actual length of delay in the circumstances of the case; - (b) the reason given by the prosecution to justify delay; - (c) the accused's insistence on a speedy trial. As against these, there are - (d) light of his interests which the trial was designed to protect, for example, the prejudice to the accused assessed in the - 1) the prevention of oppressive pretrial incarceration; - to minimise anxiety and concern; 2) - to limit the possibility that the defence will be impaired. **3)**

In sentence of death). (See also B (1982) 75 C. A. R • Vs Oxford city Justices 200 - 2 years), Zimbabwe an accused's application for a permanent stay was granted after a delay of 4a years, according to Chief Justice Gubbay, writing in the Nairobi Law monthly No. 52 of February 1995 p.47• He cited several Zimbabwe Supreme Court decisions which have not yet been fully reported, (e.g. In Re Klanbo relying upon Justice Powell in BARKER V. WINGO, and comparing PRATT Vs A. G. and Jamaica(1993) 4 ALL. E. R. 769 P. CO a case of delay in carrying out

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I would think that these guidelines are eminently sensible, if not obvious, and while there is no real need to resort to them, they are of some general interest.

The result then is that there were grounds upon which the son of the Appellant might have sued the Attorney General. Of course the learned Judge pointed out that the son had withdrawn from the suit. He had died. What should the Court have done? There is a very valuable statement in the learned Judge's judgment as follows:-

> "It is the duty of the Courts to aim at<br>doing substantial justice between the<br>parties and not to let that aim be<br>turned aside by technicalities. And as $\quad \text{And as} \quad$ soon as any question arises as to the<br>capacities of the respective parties,<br>it is the duty of the Court to make any formal amendment on the claim which<br>will make clear the capacity in which<br>the Plaintiff sued, provided that can<br>be done without any hardship to either party."

I propose to follow that advice. It is obvious that two main issues were at stake, the son's claim for damages for wrongful detention and possibly arrest and assault, and the father's constitutional claim arising from loss due to the son's unconstitutional detention.

On the first of these issues if the son had died, the father was entitled to continue the case on behalf of the sons's estate, if he thought fit. The pleadings were clearly affected by bona fide mistake. The father ought to have been allowed to amend the plaint to reflect the son's death. The notice given to Government specifically stated that the Plaintiff had been obliged to act on behalf of his son because of his wrongful detention.

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There was no problem there, that can be detected easily. A pretrial procedure would have rectified this mistake, and clarified the issues for trial.

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> The second issue whether damages can be sought for does not arise. The son of the Compensation under the and that is also covered under the general law. for the father's in another forum. Constitution lies in the son, At present, it does not lie in the father, loss, a matter which might need consideration constitutional failure i Appellant has been released.

the trial de novo. in the re-trial, the Judge is open to find any fact or facts warranted by the evidence before him or her, and come to any conclusion of law upon a proper consideration of the case in Hie result of the appeal, in my opinion, is that the learned Judge misdirected himself fundamentally on the aside the decree and proceedings in the High Court, and order a re-trial before another Judge, the Plaintiff suing, arid so desired, on behalf of the estate of the deceased person. I would order that the costs in this Court be the Appellant's costs in any event, and the costs of the High Court be costs in the event of the re-trial. It is to be understood that facts, and failed to follow his own advice of seeing to it, that technicalities did not bar this claim. I would set

9th March, 1995). (Dated as written on

> H. G. PLATT, JUSTICE SUPREME COURT

# IN THE SUPREME COURT OF UGANDA

*\^*

## AT MENGO

(CORAM: ODOKI - JSC, ODER JSC and PLATT - JSC)

CIVIL APPEAL NO. 2 OF 1993

BETWEEN

YEKOYAKIMU HYABENE APPELLANT

AND

THE ATTORNEY GENERAL RESPONDENT

Court (Appeal against the judgment of the High of Uganda at Kampala (Berko J.) dated 24th September, 1991

in

Civil Sult NO. 94 of 1990)

#### JUDGMENT OF ODOKI JSCs

I

by him. Platt JSC, I have had the advantage of reading in draft the judgment prepared by Platt - JSC and I agree with it and the orders proposed As Order J. S. C. also agrees with the judgment and orders of the appeal is allowed^ 'the decree of the High Court set aside, and a retrial ordered before another judge. It is ordered that the costs in this Court be the Appellants costs in any event and that the costs of the High Court abide the result of the retrial.

Dated this day of 1995.

B. J. ODOKI, JUSTICE OF THE SUPREME COURT. I

IN THE SUPREME COURT OF UGANDA

### AT MENG®

(CORAM: ODOKI - J. S. C, ODER - J#S. C and PLATT - J. S. C)

CIVIL APPEAL NO\* 2 OF 1992

### B E T W E E N

APPELLANT YEKOYAKIMU MWENE HYABENE :

AND

THE ATTORNEY GENERAL :: ::: RESPONDENT

(Appeal from the decision of the High Court of Uganda at Kampala (Berko\* J.) dated 24/9/1991 in H. C. C. S. NO\* 94 of 1990)

## JUDGMENT OF ODER - J\*S. C

I have had the benefit of reading in draft the Judgment of Platt\* Justice of the Supreme Court# I agree with the result and the reasons he gave\*

The appeal should be allowed\* the decree set aside\* and the case should be remitted to the High Court for retrial by another judge\*

1995. Dated at Mengo this day of *•*

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A\*H. O. ODER\* JUSTICE OF THE SUPREME COURT\*