Awaka & Another v Uganda Wildlife Authority (Civil Appeal 96 of 2015) [2025] UGCA 54 (18 February 2025)

Full Case Text

| 5 | THE REPUBLIC OF UGANDA | |----|-------------------------------------------------------------| | | IN THE COURT OF APPEAL OF UGANDA AT KAMPALA | | | fCoram: Egonda- Ntende, Barishaki, Gashirabake, JJA] | | | CNIL APPEAL NO. 096 OF 20 15 | | | (Arising from High Court Civil Suit No. 19 of 2010 at Gulu) | | 10 | 1. AWAKA PETER 2. OKELLO BOSCO APPELLANTS | | | VERSUS | | | 15 UGANDA WILDLIFE AUTHORITY RESPONDENTS |

(On appeal from the Judgment of the High Court of Uganda (Keitirima, J. ) sitting at Gulu delivered on 6th February 2015)

## JUDGMENT BY CHRISTOPHER GASHIRABAKE. JA

## Introduction

25 30 lll The plaintiffs jointly and severally brought this action against the defendant underthe provisions of the Law Reform (Miscellaneous Provision) Act Cap. 79, Laws of Uganda. They brought the action for and on behalf of themselves and the families and dependants of those who were shot and allegedly killed by the game rangers and wardens of the defendants on 24th October 2009 at Karuma- Arua junction in Amuru district. The plaintiffs also seek special damages, general damages, interest, and the cost of the suit.

### Background facts

- 5 12] The facts constituting the cause of action are that on the 24rh day of October 2009 at about 8:00a.m, Ogwang Bonny, John Ali (deceased), Okello and Opio John (deceased) while walking at Karuma Park along Karuma-Arua Junction met a Fuso truck allegedly carrying game rangers and wardens. The game rangers and wardens were dressed in the uniform of the defendant, jumped off the truck, and shot and killed Ali John son of the first plaintiff, and Opio John brother to the 2nd plaintiff. Okello sustained serious injuries from the gunshot wounds and was hospitalized. 10 - t3] That on the 25th of October 2009 Acuma Partick and others returned to the park to claim the bodies of his brother and friend who were allegedly killed by the game rangers and wardens. The game rangers and the wardens agreed to release the bodies on the condition that no information about the incident leaked to the public and that Acuma Patrick was forced to sign an agreement to that effect. The matter was reported to Kamdini Police Post and was under investigation via CRB NO.278 OF 2009. The trial Court found that the plaintiffs had not adduced cogent evidence to prove that the employees of the defendant/ Respondents were the ones who shot the deceased. - t4] Dissatisfied with the Judgment and orders of the trial Court the Respondents appealed to this court on the following grounds;

l) The learned trial Judge erred in low and.fact by disallowingthe claimwhen he held thst the Appellants failed to adduce cogent evidence to show that it was the employees of the Respondent who shot lhe deceased persons.

2) That the lectrned trial Judge erued in law and.fact when he admitted and relied on the De/bndant's situational report marked as Exhibit Dl.

3) That the learned trial Judge erred in law and .fact when he relied on exlroneous molters in his.judgment.

- 5 4) That the learned trial Judge erued in law andfoct when he decided not to give his decision on the other issues raised for trial whereas he should have addressed them all. - 5) That the learned trial Judge erred in law ond foct when he stated that the prosecution witnesses did not dispute defence evidence that there was an army detach who wore green whereos it is the defence that has to dispute prosecution evidence.

The Appellants proposed to ask the Court for the following orders:

- l. This Honourable Court allows this appeal with costs here and in the Court below. - 2. Setting oside the Judgment and orders of the High Court - 3. That the Trial Judge goes on to determine ossess and qward damages prayedfor in the High Court. - t5l The respondents opposed this appeal. - t6l Representation - l7l When the appeal came up for hearing the Appellants were represented by Mr. Racheal Nyakecho. Mr. Abu baker Ibrahim for the respondent. There was no representation for the respondent.

## Submissions by Counsel for the Appellant Ground one

t8l Counsel for the Appellant submitted that Ogwang Bonny testified that he saw the rangers shoot at the deceased. That the Warden was the one who kept the bodies of the deceased. Counsel argued that the learned trial Judge erred in law and fact when he failed to evaluate the evidence and held that PW2 the doctor who carried out the post-mortem on the deceased said he was told that the deceased was killed by gunshots. He invited the court to reevaluate the evidence.

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# s Ground two

- t9] Counsel submitted that the trial Judge erred when he admitted the situation report (Exh. D1) during the trial. Counsel argued that the appellants were taken by surprise. - [10] The admission of the document did not relieve the defence of the duty to prove its content. The defence still had the duty to call evidence to prove who sent the message, who received it and who wrote it, and who signed the report. Counsel submitted that the appellants were not accorded an opportunity to study the document, it was not possible to investigate its authenticity and even cross-examine the witness who tendered it because there was no opportunity to study it. That it was impossible to adduce evidence to challenge its content, counsel argued that the situation report (Exh Dl ), the key defence evidence should have been attached to the Written Statement of Defence or at least referred to in its list of documents as documents to be tendered in Court.

#### Grounds three, four, and five 20

[ 1 I] Counsel faulted the trial Judge on grounds that he relied on evidence that was "smuggled "into the evidence by the defendant's witness Julius Obwona (DW2). Counsel argued that the Judge erred when he relied on statements that were not made by the appellants. Counsel argued that the trial Judge erred when he abandoned the evidence placed right before him and started speculating on who could have shot the deceased. Counsel submitted that No I1358 D/SGT Okello Jasper (PWl) received information on who had shot the deceased. Counsel prayed that this court finds that the trial court relied on extraneous matters to reach its conclusions.

5 On the issue of whether the Judge erred in not considering the other issues, counsel submitted that the court ought to have assessed all the issues presented before the court. Counsel prayed that this court accepts the appeal with costs.

# Submissions by Counsel for the Respondent

## Ground one

- U2l Counsel submitted that the trial court rightly found that the appellants did not adduce cogent evidence that the people who shot the deceased were the respondent's employees. Counsel cited sections l0l and 103 of the Evidence Act, Cap 6 which is to the effect that he who alleges must prove. Counsel argued that the evidence of Dr. Okello Anum Siwamus (PW2) was not conclusive evidence of who had killed the deceased. Furtherrnore, counsel argued that the only evidence the appellant would rely on was the one of Ogwang Bonny (PW3), as a single identifying witness. Counsel cited Bogere & another v Ugandao where the court set the principles that the court should consider while relying on one single identifying witness. The trial court found that a frightened victim of an attack cannot identiff her attacker in the moment of panic and may hence fail to identifu the attackers initially or cannot properly identifo them. counsel submitted that the state he was in PW3 could not identifo the assailants. 10 15 20 - [3] Counsel suggested that since the deceased were in a gazetted area, could it be that they were attacked by animals? Counsel argued that the plaintiff had the burden to prove the person responsible for death but they failed. - [4] Counsel cited Avi Enterprises Ltd V Orient Bank Ltd & Atara Mary HCCS No. 147 of 2012 submitting that for a defendant to be held liable for the actions of the employee there must be a contractual relationship between the employee and employer, the employee must have committed a wrong that occasioned an injury or violated the rights of the victim, which was done

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5 in the course of the employee's employment and finally in an actin ostensible authority. Counsel submitted that the trial Judge did not err in law and fact by disallowing the claim of the Appellants when he held that the Appellants failed to adduce cogent evidence to show that it was the employees of the Respondent who shot and killed the deceased persons.

#### Ground two 10

[15] Counsel submitted that the respondent's counsel sought the court's leave to allow the situational report as one of the defendant's documents. When the trial court allowed the document, the appellant's counsel had the opportunity to investigate the document for purposes of ascertaining its authenticity. Counsel argued that the appellants' counsel did not request to examine the situation report (Exh Dl) on the authenticity of the document. Counsel prayed that the court finds that the trial Judge did not err in law and fact when he admitted and relied on the defendant's situational report marked as (Exh Dl).

Ground three, four, and five 20

> [6] Counsel submitted that the appellants argued that PW3 did not mention the "Fltso trucl{'while giving his evidence and faulted the trial Judge for erring when he referred to the "Fuso truck" in his judgment. Counsel argued that the appellant stated about the Fuso truck in paragraph a(a) of the plaint that;

"on the 24th day of October 2009 at about 8:00. a.m., OETvong Bonny, John Ali(deceased), Okello, and Opio John (deceased) while walking Koruma Park along the Karuma- Aruo junction met a Fuso truck carrying game rongers and wardens"

llTl Counsel submitted that parties are bound by their pleadings under Order 6 Rule 7 of the Civil Procedure Rules, S.l 7l-1. Counsel cited Pan African Insurance Co. Ltd. (1990) ALR-46-47, where it was held that the parties in

5 Civil matters are bound by what they say in their pleadings which have the potential of forming the record moreover, the court itself is also bound by what the parties have stated in their pleadings as to the facts relied on by them.

- [8] Counsel argued that the trial Judge faulted the trial Judge for not relying on the testimony of PW1, a police officer at Kamdini Police Post who identified four persons as the killers of the deceased. Counsel argued that the evidence of PWI was rather vague, inconsistent, and unreliable. Counsel stated that the PWI did not explain how he identified the said persons, and that there is no nexus between the four people and the scene of the crime. PWI did not explain as to why the four people have not been arrested and prosecuted. - [19] Regarding ground 4, counsel submitted that the trial Judge rightly so held that it would be a waste of time to resolve other issues raised as that would be an exercise in futility.

# 20 ANALYSIS

l20l It is trite law that the duty of a first appellate Court is to review and reevaluate all material evidence that was adduced before the trial Court and, while giving allowance for the fact that it has neither seen nor heard the witnesses, come to its own conclusion on that evidence. In so doing, the first appellate court must consider the evidence on any issue in its totality and not any piece thereof in isolation. It is only through such re-evaluation that it can reach its conclusion, as distinct from merely endorsing the conclusion of the trial Court. See Rule 30 of the Court of Appeal Rules and Baguma Fred v Uganda, Criminal Appeal No. 7 of 2004. In Bogere Moses & Another v Uganda, [998] UGSC 22, it was further observed;

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- 5 "Afirst appellate court must beor in mind that it did not have the opportunity to see and hear the witnesses ond should, where ovailable on record, be guided by the impression of the trial on the manner and demeonor of the witnesses." - l2l) Bearing in mind the above principles of law, I shall proceed to consider the grounds of appeal. - l22l The doctrine of vicarious liability was clearly explained in the case of Muwonge v Attorney General [1967llEA17, where Newbold P. held that: 10

"An act may be done in the course of a servant's employmenl so as to make his master lioble even though it is done conlrary to the orders of the master and even if the servont is acting deliberately, wantonly, negligently, or criminally orfor his own benefit never the less if what he did is merely a monner of carrying out what he was employed to carry out then his master is liable. "

l23l In Tusingwire Barahandika v The Attorney General and another CACA No.210 of 2018, the Court of Appeal held that;

"Vicarious liability is a situation in which one party is held partly responsible .for the unlawful octions of a third party. It is also a legal doctrine where a person, himself blameless, is held lioble for another person's conduct. The rule is justified by the Latin maxim "qui facit per alium facit per se meaning thot he who acts through another, acts himself. Under the doctrine of vicarious liability, an employer is liable for the acts of his/her employees done in the scope o/'that employee's duty."

124) Case law has held that for the doctrine of vicarious liability to apply, there must be three essential ingredients;

1. There must be a relationship between employer and employee;

- 2. The Tort must be committed by the employee; - 3. In the course of business."

8!Page - 5 l25l The main contention at the lower court was whether the persons who shot the deceased were employees of the respondents. There was only one identifying witness, the trial court assessed the law on a single identiffing witness and found that the environment was not conducive enough for him to properly identiff who exactly shot at them. - 126l It was the evidence of PW3, that while they were making ropes four-game rangers jumped out of a vehicle and walked towards them. PW3 alleged that when the rangers reached them, they started firing bullets without asking any questions. The three colleagues fell with loud cries and he ran away for his life. - I27l On the other hand, Chadiha Keffa Ndeke (DWl) stated that they deploy rangers in many areas but on the particular day the24th of October 2009,they did not have any patrol on the Karuma - Kamdini junction. This was corroborated by the evidence of Julius Obwona (DW2). DWl, further stated they use Land Cruisers and they did not have any Fuso trucks in their organization. This was also confirmed by DW2 who testified that their land cruisers with Government Number Plates UG 0232T. DWI also averred that they have green uniforms but he also added in 2009, there was a military barracks on the Arua Kamdini junctions that also wore a plain green uniform as well. DW2 stated that they have a Memorandum of understanding with Uganda Peoples' Defence Forces (UPDF), and they put on their uniform and move in the cases of the respondent, though they are not responsible for their deployments. DW 2 noted that they would have known if there were any killings but they did not receive any such information. During crossexamination, DW2 stated that rangers cannot go to the park without his authority because he has to sign a movement order. DW2 testified that while 15 20 25 30

5 on patrol they kept sending situation reports to Paraa, however, there was no situation report from Karuma Pakwach Junction.

[28] When it comes to vicarious liability, it places strict liability upon the employer for the employee's wrongdoing. Vicarious liability has three principles; there must be clarity to the employee-employer relationship; the wrongful act must be related to the relations in a certain way; and the wrong has been done within the course of employment. In this particular case, there was a challenge in identifuing the assailant because of the circumstances of the case. The evidence on record falls short of the requirements of vicarious liability. The first is that there must be an employment relationship established between the respondent and the person who committed the wrong. There is a lot of uncertainty about whether it was a ranger or a member of the UPDF who had similar uniforms. DW 2 further testified that they have a memorandum of understanding with UPDF, where some of the soldiers work with the rangers, and sometimes they put on their uniforms but still under the dispatch of the UPDF. It would be speculative to assume that the assailants were from the rangers without any further evidence. Even the four suspects mentioned by the appellants were not identified as rangers or just members of the community. Worse still no charges were laid against the said suspects. So it is safe to assume that the appellants did not establish an employer/employee relationship between the assailants and the respondent. The other issue to establish is that the wrongful act must have been committed during work. However, DWl and DW 2 clarified that there was no patrol on the 24rh of October 2009, on the Karuma - Kamdini junction.

l29l The trial Judge rightly found that the court cannot act on assumptions regarding the real assailants. It is required that whoever wants judgment in their favour, should adduce such evidence that would enable the court to find

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5 so. I agree with the findings of the lower court that they did not adduce cogent evidence on whether the people who killed the deceased were employees of the respondents. This ground therefore fails.

- [30] Tuming to ground 2, Counsel faulted the trial Judge for allowing an exhibit when the defence was about to close its case. As a general rule, documents must be proved by primary evidence except in cases in which the Evidence Act permits secondary evidence under section 64 of the Evidence Act. Under Order VI, Rule 2 of the Civil Procedure Rules, every pleading has to be accompanied by a summary of evidence to be relied upon, a list of witnesses, a list of documents, and a list of authorities. The pulpose of this rule is to give notice to the opposite party to acquaint themselves with the nature of evidence to be adduced at the hearing so that they can prepare accordingly. - [31] When the matter came up for hearing on the 17th of September 2014, counsel for the defendant applied to tender in situational reports. Counsel for the plaintiff objected to the prayer arguing that it was a surprise and he was not able to investigate the said document. Counsel for the defendant then sought leave of court to tender in the said documents. The court acknowledged the fact that the evidence should have been availed earlier and attached to the pleadings. The Court considered the fact that the evidence was relevant to the case and accepted the prayer. The court, however, allowed the plaintiffs' counsel to investigate the report for purposes of ascertaining its authenticity.

l32l Despite the learned Judge expressing the willingness to allow the appellants or counsel to study the document, the appellants or their counsel did not take the opportunity to study the document and confirm its authenticity. The appellants failed to exercise their rights, and as such the trial Judge cannot be faulted. This ground fails.

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- 5 [33] Under ground 3, the trial Judge was faulted for referring to information that PW3 did not refer to in their evidence. It is alleged that PW3 did not make mention of a"Fuso trucll'but he made mention of a"lorry and a Vehicle." I agree that PW3 did not mention the Fuso truck, in the submissions. However, in paragraph (a) of the plaint, the plaintiff averred that on the 24th day of October 2009 at about 8:00 am, Ogwang Bonny, John Ali, Okello, and Opio John, while walking at Karuma Park they saw a Fuso truck carrying game rangers. The plaintiffs maintained that the game rangers and wardens who were dressed in the uniform of the Uganda Wildlife Authority jumped off the truck, shot and killed Ali John son of the 1't Plaintiff, and Opio John, brother to the 2nd Plaintiff. Okello sustained injuries from the gunshot wounds and was hospitalized. 10 15 - l34l The above averrnent was contrary to what PW3 stated in their examination in chief. He alleged that while they were preparing the sisal ropes they saw a lorry coming from the other side of the road, it stopped where they were and four rangers jumped out of the vehicle. The four rangers walked towards them and when they reached where they were, they started firing bullets. He further stated that Okello sustained injuries but up to now they do not know his whereabouts and his body cannot be found, contrary to what was averred in the plaint, that Okello was injured and hospitalized. - [35] The two stories do not seem to be speaking of the same event. It shows that the evidence of the plaintiff is full of deliberate lies and unreliable. It is trite that parties are bound by their pleadings and when leading evidence, they should give evidence that supports a case that they represented in their pleadings. This is provided under Order 6 of Rule 7 of the Civil Procedure Rules. In Jani Properties Ltd V Dares- salaam City Council (1966) EA 281 court observed that parties in Civil matters are bound by what they say 25 30

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5 in their pleadings which have the potential of forming the record of appeal. Moreover, the court itself is also bound by what the parties have stated in the pleadings as to the facts relied on by them. No party can be allowed to depart from its pleadings.

Having stated the above, I find no fault in the Judge referring to the Fuso

truck, because it was averred in the pleadings. That said whether'Fuso truck"

or lorry. or vehicle, the defendants denied having either of those and clearly

stated that they owned a Land Cruiser. UG 0232T. With the above, I find

[36]

On ground 4 the trial Judge was faulted for not deciding on the other issues. Counsel referred to Welt Machine and Engineering Limited v China Roads and Bridges Corporation and another, High Court Civil Suit No. 016 of 2014,I have had the opportunity to read the above case and it does not apply to the circumstances of this case. Whenever a matter can be disposed of by the first issue, there is no use in resolving the remaining issues and the trial Judge cannot be faulted. This ground also fails. l37l

that this ground has no merit this ground fails.

Lastly, the appellant contended that the Judge erred when he stated that the prosecution did not dispute the defence that there was an army detachment who wore green as the rangers. Counsel argued that this was not an issue since the witnesses had clarified that he saw rangers. Counsel further stated that if the defendant opted to dress the army in its uniforms and they committed an unlawful act then it was done in the course of their transaction with the defendant for which the defendant should be held liable. [38]

I do not agree with the submissions of counsel for the appellant that it was not an issue to dispute the evidence of the defendants regarding UPDF since the witness had identified the assailants as rangers. Once a party fails to challenge evidence in cross-examination, it is deemed to be in the correct [3e]

ge 13 lPa

- 5 position of the facts. According to the evidence on record I find that the trial Judge rightly found that neither the appellants nor the appellants' counsel disputed the evidence regarding the existence of the detach of UPDF that wore the same uniform. This ground therefore fails. - [40] I find that this appeal has no merit. I would dismiss it and order each party 10 to bear its costs.

Dated at Kampala this ... day of 5

15 Ch ristopher Gashirabake JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT I{AMPALA

[Coram: Egonda- Ntende, Barishaki, Gashirabake, JJA]

CIVIL APPEAL NO. 096 OF 2015

(Arising from High Court Civil Suit No. 19 of 2010 at Gulu)

#### 1. AWAI{A PETER

2. O,(DLLO BOSCO APPELLANTS

## VERSUS

# UGANDA WILDLIFE AUTHORITY ........ RESPONDENTS

( Appeal from the judgment of High Court of Uganda (Ketima J.) at Gulu dated 6th Februarg 2015)

# Judgment of Cheborion Barishaki , JA

I have had the benefit of reading in draft the judgment in this Appeal prepared by my brother Christopher Gashirabake JA and I agree with the analysis he has made and the conclusion reached that this appeal has no merit and ought to dismissed.

I also agree with the order that each party bear its own costs.

Dated at Kampala this........1 day of 2025.

,borion Barishaki

JUSTICE OF APPEAL

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT GULU

[*Coram: Egonda-Ntende, Barishaki Cheborion & Gashirabake, JJA*]

# Civil Appeal No. 96 of 2015

(*Arising from High Court Civil Appeal No.19 of 2010 at Gulu*)

#### **BETWEEN**

| Awaka Peter =================================== | | |-------------------------------------------------|--| | Okello Bosco $\rightarrow$ Appellant No.2 | |

#### **AND**

Uganda Wildlife Authority $=$ Respondent

(On appeal from the judgment of the High Court of Uganda (Keitirima, $J$ .) sitting at Gulu and delivered on $6^{th}$ February 2015)

#### **JUDGEMENT OF FREDRICK EGONDA-NTENDE, JA**

- $[1]$ I have heard the opportunity of reading in draft the judgment of my brother, Gashirabake, JA. I agree with it. - As Cheborion Barishaki, JA, also agrees, this appeal is dismissed with $[2]$ each party bearing his or its costs.

Signed, dated and delivered at Gulu this 18th day of February American Standards, Altande k Egonda-Ntende

**Justice of Appeal**