Kikanshemeza v Attorney General and Another (Civil Suit No: 88 of 2023) [2013] UGHC 264 (23 May 2013)

Full Case Text

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**VERSUS**

1. ATTORNEY GENERAL

1. ATTORNEY GÉNERAL 2. UGANDA REVENUE AUTHORITY proportion defendants **泰国国家的国家** 地名德德斯比勒利亚东

# Before RON. LADY JUSTICE FAITH MWONDHA

## **JUDGMENT**

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工业的代码

**阿尔里斯岛**

的理論

This suit was brought before me by counsel for the plaintiff M/S. Rwaganika & Co. Advocates. The plaintiffs claim against the defendants jointly and severally was for recovery of general damages and special damages arising out of malicious prosecution which were committed against her by agents of the defendants. Paragraph 5 of the plaint provided the facts which constituted the cause of action as follows among others.

That the plaintiff a business woman who operated a secretarial $(a)$ related bureau and in addition used to sell secretarial related goods at her business premises located at Entebbe International $\hat{\mathcal{C}}$ Airport.

That on 21st day of February 2007 she was arrested by Police $(p)$ Officers from Entebbe Airport by the official of URA Entebbe branch who were acting on the orders of one Sarah Mwesigve the their Manager URA Entebbe Airport branch. $\mathbb{N} \times \mathbb{R}$

> in a resting the plaintiff the police acted on information communicated by a telephone call from someone in URA who falsely alleged that the plaintiff was forging URA invoices at her business premises at Entebbe Airport.

No report was ever made or statement recorded at police station by anyone on the matter and the actions of the police and URA officers were based purely on a rumour which came to them by way of the telephone call, referred to by police as a tip off.

$157$

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The police and URA officers never investigated the tip off before afresting the plaintiff

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The plaintiff's business premises were searched without a search Warrant and the Central Processing Unit (CPU) of her computer seized.

The plaintiff was arrested with an arrest warrant.

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通識 14

The plaintiff was arrested and taken to the 2nd Defendant's offices together with her Central Processing Unit (CPU) and no evidence incrementing her was found.

From URA offices the plaintiff was taken to Entebbe police cells which were heavily infested with mosquitoes and had no mosquito nets.

The plaintiff was later transferred to Kampala under heavy police and URA escort and lead to Jinja Road Station where she was further detained.

plaintiff was subsequently produced in Nakawa Chief The Magistrate's court and charged with 6 counts of forgery. A copy of the charge sheet is annexed and marked "R".

After calling 3 witnesses the prosecution amended the charge sheetland changed the particulars of offence after the witnesses failed to adduce any evidence connecting the plaintiff wit particulars of forgery of the items mentioned in the charge sheet. A copy of the amended charge sheet is attached and marked S. T. T. T. T. T. T. T. T. T. T. T. T. T.

The prosecution called a total of 5 witnesses and when it was discovered that he case was taking the prosecution nowhere, the case was withdrawn and the plaintiff discharged on 2nd day of July, 2009 under S. 121 of the Magistrate's Court Act. A copy of the proceedings and Order is attached and marked "T"

The plaintiff contends that the prosecution was false.

From the plaintiff's Secretarial bureau the defendants carried the CPU to the 2nd defendant's offices where they failed to open it. The computer was afer taken to URA headquarters in Kampala and then to police from where it was brought to court as exhibit. 這些關係? \* \*

in court PW4 who was called in as a URA computer expert to prove the forgery failed to open the said computer and did not produce ant item alleged to have been forged by the plaintiff.

2.9 MY 2013 画米

The actions of arrest, imprisonment and prosecution were perpetrated by members of the police force in the course of execution of their duties, and therefore the Attorney General is Vicariously liable.

Likewise the acts of arrest imprisonment and subsequent prosecution were perpetrated by officers of the Uganda Revenue Authority in the course of their employment and therefore the 2nd defendant is vicariously liable for their actions.

The conduct of the defendants disrupted the plaintiff's businesses and the plaintiff suffered loss of income as a result of the plaintiff's arrest, imprisonment and prosecution.

The defendant's officers have never returned the CPU they seized from the plaintiff's premises, which was purchased as a full computer unit at Ugish! 2,000,000/=. $\mathbb{F}^{\bullet}(\mathfrak{g},\mathfrak{g})$ $\mathbf{L}^{\mathcal{L}}$ $140.212$

最高级医门下的未到用于最近一覧に The plaintiff suffered special damages as a result of the acts of $(10)$ the defendant's agents:

### PARTICULARS OF SPECIAL DAMAGES;

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中心影響了

活形

(a) Toss of Computer set bought at Uq.shs. 2.000.000/=

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(b) $Loss$ of daily income at the rate of Ug.shs. 60,000/= per day from 21 day of February, 2007 to the date of if the payment. 的复数长行

The plaintiffi spent an average of Ug.shs. 50,000/= on W $(c)$ Streit special hire expenses between Entebbe where she lives Williams Nakawa Chief Magistrates Court to attend court for the 24 days which totals $Ug$ . shs. 1,200,000/= 其。目標書

The defendant suffered stress, psychological torture, embarrassment and loss of self esteem as result of the defendant slactions.

The plaintiff suffered from about of severe sickness as a result of the defendants, servants, acts and was admitted to Mulago National Referral Hospital in critical condition for some time and attended several clinics before and after admission! Copies of medical records are attached and marked U.

量工工事,每个国际,但可是

The avaluation of

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A declaration that the prosecution of the plaintiff was $(a)$ malicious? $(b)$ Special damages

$\mathbb{F}_{\text{eff}}(c)$ General Damages $(d)$ Interest at market rate of 24% from 21st day of February, 2007 till payment in full.

# $\mathcal{L}(f)$ Any other relief.

$\{\mathfrak{g} \mid \mathfrak{g} \in \mathfrak{g} \} \} \quad \text{Costs of the suit} \quad \mathfrak{g} \quad \mathfrak{g}$

Both defendants filed WSD in which the 1st defendant denied the contents of paragraph 5 of the plaint and specifically that the 1st defendant will aver that the arrest and subsequent prosecution were lawful in that the defendant's agents acted on a reasonable and honest belief that the plaintiff had committed the alleged offence.

In paragraph 6 of the 1st Defendant WSD the 1st defendant denied that his agents acted maliciously and unlawfully and that they will put the plaintiff on specific proof while the $2^{nd}$ defendant (URA) denied the contents of paragraph $\bar{z}$ of the plaintiff save for the details of the plainti business. The 2nd defendant denied in general the contents of paragraphs 5 $8.6.$

The 2nd defendant further pleaded in paragraph 5 of their WSD that the plaintiff was prosecuted by DPR and cannot be held liable for the prosecution of the plaintiff. They attached a copy of the charge sheet. They denied knowledge of the contents of paragraphs 8 & 9 of the plaint together with $\mathfrak{Q}$ paragraphs 10, 11 & 12. They stated that a preliminary point of law would be raised at the commencement of the trial.

In the alternative but without prejudice to the forgoing the 2nd defendant contended that

That the plaintiff was charged on two counts with the offence of $i/(a)$ forgery contrary to Sec 347 of the Penal Code Act and on four counts with the offence of making of using false documents contrary to Sec 203(g) of the East African Community Customs **SALES** Management Act, 2004.

(南) 博·东 that the plantiff was then arrested and charged before the Chief Magistrate's count of Nakawa, NAK- CO, 134/2007. Copies of **EXISTENCE b激发了这个情况**

$\mathbb{R}^2 \times \mathbb{R}^2 \times \mathbb{R}^2$

the charge sheet are annexed and marked "A1 and "A2" respectively.

That the DPP decided to discontinue proceedings against the plaintiff on the 16th of Juhe, 2009. A copy of the withdrawal formals annexed and marked 'B".

That this prosecution was not malicious, but was reasonable and had probable cause?

That for reasons where of they prayed that the suit be dismissed with costs.

In ovil matters the case has to be proved on a balance of probabilities and so both parties have a duty to adduce evidence in order to be entitled to the Judgment. $\{f_i\}_{i\in [n]}$

S. 101 & S.103 of the Evidence Act Cap. 6 Laws of Uganda is instructive. It provides;

$\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{$ "whoever desires any court to give Judgment as to any legal right or liability dependant on the existence of facts which he or she asserts must prove that those facts exist."

國家國家计计算时算的复数医阿克斯氏菌素 At the hearing of the suit during the scheduling conferring the parties agreed on the following issues.

【信书读》:

建筑力器建筑于重重于重新最大事情 $\mathcal{M}: \mathcal{L}_{\mathcal{M}} \rightarrow \mathcal{L}$ Whether the prosecution of the plaintiff was malicious $(1)$

Whether the defendants weel vicariously liable for the actions of $(2)(2)$ their agents or servants $\gamma_{11} \gamma_1 \gamma_2$

What remedies are available. $(3)$

$(c)$

$(d)$

On the 1st issue, it was DWI's testimony that he was informed on telephone by (Command out Aviation Police) that there were some culprits (suspects) that were believed to have forged URA invoice, air, way bills and other URA documents. That they proceeded to the plaintiffs, business premises at Enterpre Cargo Terminal Room No.2. That he was with an Investigation Detective Olugu Francis

He stated that they recovered documents which they did not know the particular documents but had agreed with one Mr. Katono, that since they were not quite coghizant with URA documents they would retrieve all documents that had URA related information. This is the same witness who stated in his witness statement that they informed the plaintiff that there

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re some documents that were suspected to belong to URA that were thin her premises and that they were there to search her premises to find out if it was true or not 計畫信義

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That they got all the documents and Mr. Katono went to the computer to search for those documents. That Mr. Katono advised that they get the Computer Processing Unit (CPU) and exhibit it at the police station which they did. That they took the plaintiff to the aviation Police for further management. That him and Mr. Katono went to Mrs. Sarah Mwesigye the Manager URA office and recovered the documents to her and to tell her about the arrest of the plaintiff. That they proceeded with the recovered documents and opened a file of forgery against the plaintiff and others still at large.

That he made a statement and Mr. Katono made his also. That the plaintiff was detained and spent a night at the Aviation Police Station. After that she was transferred to Jinja Road Police Station. That on 22nd August, 2008 he testified at Nakawa Chief Magistrate's Court against the plaintiff. That the employee of the plaintiff on seeing them she disappeared so that increased their suspension. That her behaviour was not that of an innocent person.

DW2 was Katono Dauda working with URA as an Intelligence Officer that sometime in 2007 they received information from an informer that there was a Secretarial Bureau on the Cargo Terminal where clearing agents were manufacturing invoices, alrway bills and other documents that are declared at customs. $\frac{1}{2}$

That on Mrs. Sarah Kasheeka Mwesigye revealed that the Bureau was in room 2. He testified to the save effect as DWI except that for him he said that they recovered 7 blank documents (hard copies) headed invoices from different files. That they recovered a blank fax copy of a telegraphic Transfer bearing a Nile Bank Stamp a book let of Airway bills among others. That they carried to (CPU) after power had gone out and asked one IT expert to open it.

That when the CPU was obened they discovered many other blank documents and involces some of which bore qualities and values. That they printed out some of the copies and handed them to CID together with the hand copies and the CPU. That they signed a search certificate which the court ruled that the same was not effective and could not be relied on. That he was later summoned to come and give evidence. That later he was informed that the DPP decided to rerminate the prosecution. He said that as al customs offence has been brills being committed or that there are documents related to undustomed goods in the premises. $\mathbb{R}$ A. Sunger

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was apparent from that evidence that it was not clear whether the blank and copies/documents found in the business premises of the plaintiff were forged. Having a right perse to search as a customs officer where he had easonable grounds, that a customs offence has been committed, did not mean that due process of the law is not adhered to by him.

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The right is given or provided followed especially the procedure then this turns into malice. In his statement he does not state that there documents especially the alrway bills, invoices and documents marked with Nile Bank Stamp were analyzed by a Government Analyst to establish whether they were forgeries.

The reason that the employee of the plaintiff ran away excusing herself that she was going to wash her hands, in my view could not constitute reasonable belief that the plaintiff was suspected to have committed the offence: This was more of a speculation than a fact. DW2 an Intelligence Officer attached to URA relied on the information given to him and believed It without verifying it by competent investigators. The same defence withess stated that they did not know the plaintiff before

but that the plaintiff was charged and prosecuted after which the criminal proceedings were terminated. There was no evidence through that the prosecution was instituted by a person with spite or ill-will and counsel for the plaintiff in his submission submitted that according to Oxford Advanced Learners Dictionary of current English spite or ill-will means desire to cause pain or damages. It's clear that the case was prosecuted by DPP and DW1 and DW2 were servants and employees of the 1st & 2nd defendants.

超聚重整堆鐵貨礦料館新国新日子 O The two officers definately became malicipus when they arrested the plaintiff without sufficient evidence detained her despite the fact that she was a breast feeding mother which fact they knew and went ahead to frame $4$ charges against her The charges framed against her in Nakawa court continued for a years before the proceedings well discontinued by the DPP. So an account of the 2 witness actions the defendants become vicariously for malicious prosecution is the first management of the management of the management of the management of the management of the management of the management of the management of the management of the management of the managem

It's these two defence witnesses who by their conduct and actions as narrated by the plaintiff and her witnesses had the desire to cause pain and damage and suffering to her. They took her CRU which CRU ought have been returned to her the moment the DPP discontinued the proceedings and We was not it was not disputed that the plaintiff had the Secretarial Bureau and she used to sell, the secretarial related goods. So finding blank documents and blank fax machine the paper was not surprising. I concur with the submissions of counsel for the plaintiff on this issue. Accordingly thems issue is determined in the affirmative ( ) | | | | | | | | | | | | | | | | | | 新国的工作中国對評議 「 「 「 「 「 「 「 「 「 」 「 「 「 」 「 「 」 「 「 「 」 「 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 」 「 … 」 「 … … … … … … … … 到開黨門起 $\mathcal{H} \cdot \mathcal{L}$

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, the 2nd issue as to whether the defendants were vicariously liable for the ctions of their agents/servants. It was not in dispute that the DW1 and DW2 were servants/agents of the defendants. It was not also in dispute that DW1 & DW2 were working in the course of their employment. I agree with the case cited by counsel for the plaintiff Lutaaya vs. Attorney General 2001-2005 HCB Vol.1.224 which held to the effect that in order to prove vicatious liability, it's immaterial whether the manner in which the officers carried out their duties was improper or authorized, so long as it was merely a manner of carrying out their duties.

He submitted that these cases cited are squarely applicable to the facts of this case. DW1 was a police officer and DW2 was working with URA as an Intelligence officer. The fact that DW1 conferred in DW2 that they were not cognizant with the alleged forged URA documents and so they just collected whatever they laid their hands on, was enough to show that they were performing their duties in the course of their employment without knowledge of what the alleged forgeries were. This goes further to confirm that they had in will against the plaintiff their pleadings that they were not the ones who prosecuted the plaintiff were immaterial.

長にはこのテージに向けて、それは、台湾、国社会家新疆社会社会教育 The fact is that the two officers were servants/agents of the defendants. If in their view the officers were on a foolic if their own that was an internal matter between their employers and themselves. It's important to note that the police stations were they detained the plaintiff and the eventual charges against her and prosecution one institutions directly under the control of the $1$ st defendant so the 2nd issue is also determined in the affirmative.

On the last issue of remedies, it was in the evidence of both the plaintiff and DW1 & DW2 that they took away the CPU because they suspected forged $\bigvee$ documents to be there. There was no evidence adduced by the defendants to the effect that the CPU was even returned to the plaintiff. The cost of the

CPU was stated to be Ug. shs. 2,000,000/- She also testified about the loss of daily income. She also produced documentary evidence. She stated that by the time the Criminal matter was discontinued she had ran out of business. She said she worked 5 days in a week and she was earning Ug. shall 60,000/- per day. She made her calculations to the effect that she would work 295 days in a year. That she calculations to this entitled to the time of Judgment. She also testified that she used to spend Ug; shs, 50,000/= per day special hire for her transport between Entebbe and Nakawa Chief Magistrates Court to attend her that for 24 days. The total was Upishs: 1,200,000/= she prayed for shsi 20,000/- in respect of her meals each time she attended Prayed Time In the property of the property of the property of the property of the property of the property of the property of the property of the property of the property of the property of the property of the property of

非理性解釋

都是這樣理解性

新了面计算网理题是具

了解() 即應即得對著卡尼日報同期對任員

意料 **新生育** 29 MAY: 2013 的理论的机构通

art which came to Ug shs. $480,000/$ = she also stated that she spent .0,000,000/ $\Rightarrow$ on layers fees.

She prayed for general damages, for the ill treatment. Loss of esteem, humiliation, sickness attributed to her ill treatment while in police cell pain and suffering among others. She also prayed for interest at 24% p.a from the time of Judgment to payment in full, costs of the suit and any other relief.

From the evidence as adduced and considering the fact that there was no reasonable or probable cause to prosecute the plaintiff, the plaintiff had proved her case on a balance of propabilities. The purpose of damages in tort is to restore the injured person the position he would be in having the injury not made.

Judgment is accordingly entered in her favour in the following terms; (1) Special damages of the cost of the computer CPU which is;

$(3)$ - 2,000,000/=

$\frac{1}{2}$ (b) Medis at 10,000/= for 24 days while attending court $240.000/$ = 18副黨和國際轉發

Transport at 30,000/= $\times$ 24 days she attended court $(e)$ loss of income $720,000/=$ "Hing" Gitter

$\sim$ V Total special damages 92,040,000/=

General damages pain and suffering, humiliation loss of $(2)$ esteem Ug. shs. 20,000,000/ $\div$ 盛み

(3) Costs of the sult.

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(4) Interest of 20% pla on (1) from the 21st day of February, 2007 to payment in full. $\lambda \in \mathbb{R}$

Right of Appeal Explained 9 MAY 2013 **FAITH MWONDHA JUDGE:** $23/05/2013$

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT

#### NAKAWA CIRCUIT

### CIVIL SUIT NO. 88 OF 20

# KIKANSHEMEZA CHRISTINE::::::::::::::::::::::::::::::::::::

VERSUS

#### ATTORNEY GENERAL 1.

UGANDA REVENUE AUTHORII

THIS case coming up for final disposal this $23^{rd}$ day of $\frac{1}{2013}$ before Hon. Lady Justice Faith Mwondha and upon hearing Mr. Henry Rwaganika for the Plaintiff and Mr. Mwambutsya Martin and Mwajumah Nakku Mubiru for the 1st and 2nd Defendants;

**DECRER**

IT IS HEREBY ordered and decreed that judgment be entered for the Plaintiff under the following terms:

- a) Special damages of UGX. $2,000,000/$ = for the cost of the computer Central processing unit (CPU). - b) Special damages of UGX.240,000/ being the cost of meals at UGX.10,000/= per day for 24 days. - c) Special damages of UGX:720,000/ covering transport at UGX. $30,000/$ = per day for 24 days. - d) $UGX.93,900,000/$ = as total income lost. - e) $UGX.20,000,000/$ = as general damages

$f$ ) Costs of the suit.

g) Interest at the rate of 20% per annum on UGX. 135,604,000/= from 7.2.2007 till payment in full.

DEPUTYREGISTRAR to the allicavit of to the allicavit of

sworn before n

day of

that this is anneyture

GIVEN under my hand and seal of the court this...,.................................

Drawn by & filed by: M/s Rwaganika & Co. Advocates, Plot 4, Jinja Road, 2nd Floor, Social Security House, P. O. Box 12110, KAMPALA.

UGANDA REVENUE AUTHORITY RECEIVED 16 JUN 2014 R. $\mathbb{C} \subseteq \mathbb{C}$ COMMISSIONER LEGAL SERVICES & HOARD AFFAIRS