Lolem Lotogoi and Another v Attorney General (Complaint No: UHRC/MRT/54/2007) [2018] UGHRC 32 (21 May 2018)

Full Case Text

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# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL HOLDEN AT MOROTO COMPLAINT NO: UHRC/MRT/54/2007

1. LOLEMLOTOGOI

2. LOYOLO MARIA LOTOGOI

::::::::::::::::::::: COMPLAINANTS

-AND-

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

## (BEFORE HON. COMMISSIONER MEDDIE . B. MULUMBA)

## DECISION

The Complainants Lolem Lotogoi and Loyolo Maria Lotogoi both residents of Nakwakachel village, Lotim Parish, Kalapata Sub County, Kaabong District allege that during the month of September 2007, Uganda People's Defence Forces (UPDF) soldiers based at Kathile Army Detach who were on routine search and codon operation exercise in Karamonja Region entered into their garden located in Lotim Village. That upon entering the garden the soldiers uprooted, harvested and ate their crops in the garden which were ready for harvest.

The Respondent denied the allegations.

This complaint came up for 1st time hearing on 20th November 2013 before Commissioner Violet Akurut Adome. At the hearing, Loloem Lotogoi was present while the Respondent was represented by Counsel Lumbe Eric. Respondent Counsel prayed for an opportunity to explore amicable settlement. On 10th March 2015 when the matter came up for further hearing, Commission Counsel Angella Esther informed the Tribunal that no steps had been taken to explore efforts at amicable settlement. The matter was\* therefore set down for hearing. At the hearing, following issues were framed for determination;

- I. Whether the Complainants' right to property was violated? - II. Whether the Respondent is liable? - III. Whether there are any remedies available to the Complainants?

At the hearing examination in chief and cross examination was carried out on the 1st and 2nd Complainants - Lolem Lotogoi and Loyolo Maria Lotogoi respectively. The matter came up for further hearing on 2nd May 2016. Examination in chief and cross examination was carried out on Lokol Lobangiro CW I. The matter came up for further hearing on 17th October 2017. Commission Counsel Angella Esther informed the Tribunal that 2nd Complainant had passed on. Examination in chief and cross examination was carried out on Nyanga Latoani CW II. This was the close of the Complainants case. When the matter came up for defence case, the Respondent did not call defence witnesses but Respondent Counsel Martha Akurut opted to file submissions.

I will now resolve the Issues in the order they were raised.

In regard to Issue I, the 1st Complainant testified that she is a peasant farmer. On a day, month and year she could not recall UPDF soldiers who on patrol carrying out a search and cordon operation entered her garden. Together with the 2nd Complainant and Lokol Lobungiro they found the soldiers in the garden. She was not sure of the exact number of the soldiers who were in her garden. The soldiers uprooted her maize and sorghum. The soldiers also stepped on her other crops which were in the garden and left afterwards. She followed the soldiers to the barracks and later reported her case to a World Food Progamme officer but was not offered any assistance. She prayed for compensation for the damage caused by the soldiers.

Upon cross examination she stated that she owns the garden with Nyangau, Logeil, Nakany and Losire who are co-wives. The crops which were destroyed also belong to her co-wife - the 2nd Complainant. She harvests 7 granaries of food annually from the garden.

The 2nd Complainant testified that the 1st Complainant is her co-wife. Her garden was destroyed by UPDF soldiers during the cordon and search operations. She found the soldiers in the garden and the soldiers destroyed her sorghum, maize and pumpkins. Together with the 1st Complainant they followed the soldiers up to Kalapata barracks. They reported the matter to the officers in charge but they did not get any assistance. During the harvest season they would harvest about 5 granaries of sorghum and maize. She got to know that UPDF soldiers destroyed their garden because they found them in the garden and also followed them up to the barracks.

Upon cross examination she stated that the garden is about 7 or 8 acres. The soldiers were many. The soldiers were carrying guns. They reported the matter to other offices part from the army because they feared the soldiers.

CW I testified that the Complainants are his late brother's wives. At around 9:00 am on a day and mother which he could not recall but towards the harvesting season, armed uniformed UPDF soldiers from Morungole went to the Complainants' garden located in Lorobar Village. The soldiers began eating the crops which the complainants had planted. The Complainants had planted water melon, pumpkins, sorghum and maize. The Complainants were faced with hunger and did not have any grudge with the soldiers.

Upon cross examination he stated that he saw the soldiers eating the maize and sorghum but he could not do anything. The soldiers were dressed in military combat. The Complainants found the soldiers in the garden.

CW II testified that the 1st Complainant is her mother. Their one acre garden located in Lotim Village was destroyed by armed uniformed UPDF soldiers attached to Lokwakarome Army barracks. At around 7:00 am armed UPDF soldiers found her and her two mothers Lolem Lotogoi and Loyoroi Maria in their garden. The soldiers began destroying the maize in the garden which they had planted. The soldiers made a fire and ate the maize and sorghum which they had planted. The soldiers who had saucepans made a fire and cooked what they had harvested. She was with her mothers in the garden but they later moved to higher ground where they were able to see the soldiers. After the soldiers had destroyed their crops and left, they went to the garden to observe the garden which had been destroyed. They estimate that the soldiers ate 10 sacks of food.

Upon cross examination, she stated that half of the 2nd Complainant's garden was destroyed. The sorghum and maize was ready for harvest. It was government soldiers who destroyed their garden because they were in uniform and armed.

The right to property is protected under Article 26 of the Constitution of the Republic of Uganda which states that;

- *1. Every person has a right to own property either individually or in association with others.* - *2. No person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfled* - *a. The taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, morality or public health; and* - *b. The compulsory taking of possession or acquisition of property is made under a law which makes provision for-* - *i. Prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property; and* - *ii. A right of access to a Court of law by any person who has an interest or right over the property;"*

In *Osotraco Limited versus the Attorney General HCCS No.1380 of 1986* the right to property as envisaged by the Constitution of the Republic of Uganda, 1995 was recognized and upheld Court observed thus; *"The right to property is a right protected by the Constitution in Article 26"*

That right is protected and can only be taken away upon payment of adequate compensation prior to taking. In the case of Gideon Emaru Vs. Attorney General HMC No.071 of 2005, a matter arising out of insurgency in Teso, Justice Elizabeth Musoke held;

*"What is in issue is whether the failure to compensate him was illegal and infringed on his rights. The right to property as provided under the Constitution is clear and the circumstances under which this right can be interfered with subject to compensation; as such failure to fulfill the requirements therein makes the action illegal in the instance."*

The right to property is also provided for in the Universal Declaration of Human Rights, Article 17 thereof provides;

*"(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property."*

The Complainants have the burden to prove the allegations against the Respondent on a balance of probabilities ("See *Section 101 (1), 102 of the Evidence Act Cap 6; Annet Namirimu Ndaula vs, Rev Aloni Mulondo & Anor HCCS 27 of 2011; Okello Tom Ibrahim & Another vs Attorney General UHRC/G/88/2005; Katantazi Wilson and Attorney General UHRC/JJA/57/2004).*

In her submission Respondent Counsel Akurut Martha stated that on a balance of probabilities, the Complainants' right to property was violated despite the fact that there were a few inconsistencies in regards to the extent of the damage suffered by the Complainant's gardens and the inconsistencies as to how long the soldiers spent in the garden and the amount of crops that were salvaged.

In the instant complaint, the Complainants and their witnesses maintained their testimony that the UPDF soldiers destroyed their garden. This evidence was not contested by the Respondent. Where the evidence remains unchallenged, the Tribunal construes the same as proof of the facts alleged (see Uganda Revenue Authority vs Stephen Wlabosi SCCA 26 of 1995).

In Dawson Okolong and Attorney General UHRC/JJ/38/2003, UPDF soldiers occupied the Complainant's land measuring about 3.46 acres. During their occupation, the soldiers destroyed the Complainant's crops and he was denied access to the land. The Tribunal held that the occupation was wrongful and unlawful occupation of the Complainant's land despite the national security concerns.

The actions of the UPDF soldiers entering the Complainants' garden cutting down their crops amounts to a breach of Article 26 (1), (2) (b) (1) of the Constitution of the Republic of Uganda.

In this regard, I find that the Complainants' evidence which was uncontested was on a balance of probabilities sufficient to prove that the UPDF soldiers destroyed which was contrary to Article 26 of the Constitution of the Republic of Uganda.

The first issue is therefore answered in the affirmative.

#### I now turn to Issue II

In submission Respondent Counsel did not dispute the fact that the Complainants had a right to property and that the Complainants crops were destroyed by the soldiers attached to Kathile Army detach. What is disputed is the fact that the soldiers were acting in the course of their employment. In submission, Respondent Counsel stated that the soldiers in question were not acting in the course of employment. The act of the soldiers destroying the crops of the Complainant cannot be imputed as acts of the Respondent. Although the Complainants and their witnesses saw the soldiers from Kathile barracks harvesting the crops from their garden, the soldiers were acting on the frolic of their own. Their actions were not acts for which the soldiers were employed to do and neither was it a manner of executing their duties of providing security to the people. She pointed out that none of the Complainants or their witnesses testified where the soldiers were coming from. Or whether they had peached camp near their gardens and certainly the purpose for which they were in the area because they all testified that the soldiers just came and destroyed their garden and later left. Respondent Counsel referred to tribunal to AKPM Lutaya and Attorney General SCCA 10/2002 in which Justice Tsekooko JSC in his lead judgment stated that;

*"it is my view that if it was a question of one soldier or two soldiers doing the damage complained of by the appellant once or twice or stealthily, it could accord with the opinion of both the learned principlejudge and the Court ofAppeal that the soldiers acted on their own frolic. But, where, as it's quite evidence in this case, that soldiers made it routine to harvest timber and fruits from the appellant's farm for the purpose of enabling them to perform their functions, it ceased to be a frolic of the soldiers ".*

From the evidence before this tribunal, it is not in dispute that the Complainant's gardens were destroyed by UPDF soldiers who were returning from a Condon and search operation. Respondent Counsel contends that the Respondent is not vicariously liable for their actions.

In AKPM Lutaya and Attorney General SCCA 10 of 2002 the learned Justice Tsekooko JSC further states that;

*"The Ministry of defence deployed soldiers at Mpoma Satellite station to perform state security matters. The Ministry of defence was bound to provide accommodation for and food to the soldiers. Failure to make the provisions for the soldiers tempted the soldiers or their commanders to use initiative for the soldiers to survive in order to be able to perform state duties. Surely it cannot lie in the mouth of the respondent to say that in those circumstances soldiers did what they did at their peril or that they should have slept in the open to face the vagaries of nature. I cannot agree".*

The Respondent Counsel has acknowledged that indeed the soldiers caused damaged to the Complainant's gardens. The soldiers were deployed in the Karamoja region to conduct a Condon and search operation hence the Ministry of defence was duty bound to provide food to the soldiers at all times. In the instant case, it was not one or two soldiers who destroyed the Complainants, these were many soldiers. The failure of Ministry of defence to make provision for the soldiers tempted them to invade the Complainants gardens and maybe other gardens in the region, harvest their crops in order to survive and perform state duties which was a manner of executing their duties of providing security to the people

In my opinion the acts of the soldiers were official acts hence the Respondent is vicariously liable.

The answer to Issue II is therefore in the affirmative.

I now turn to the last Issue

Where a human rights violation has been committed, the Complainant is entitled to a remedy which can include compensation. Having resolved Issue I, II and III in the affirmative, the estate of the deceased is entitled to compensation *[see the Universal Declaration of Human Rights (UDHR) Article 8; Articles 50 (1), 53 (2) (b) and (c) of the Constitution of the Republic of Uganda 1995; Bagume John and Attorney General UHRC/JJA/10/2007],*

inconsistencies as to how long the soldiers spent in the garden and the amount of crops that were salvaged.

As earlier noted the 2nd Complainant Loyolo Maria has since passed on but had given their evidence in chief and had also been cross examined. Any award therefore would pass to her estate. Having considered the evidence adduced before the Tribunal, the Respondent is ordered to pay to the 1st complainant and to the Estate of the Late Loyolo Maria Lotogoi a total sum of UGX 8,000,000/= (Uganda Shillings eight million only) as general damages for the violation of their right to property.

### ORDERS

The Tribunal hereby orders as follows:

- 1. The complaint is allowed. - 2. The Respondent is ordered to pay Lolem Lotogoi a sum of UGX 4,000,000/= (Uganda shillings four million only) as general damages for the violation of her right to property. - 3. The Respondent is ordered to pay to the estate of the Late Loyolo Maria Lotogoi a sum of UGX 4,000,000/= (Uganda shillings four million only) as general damages for the violation of her right to property. - 4. The said total sum of UGX 8,000,000/= (Uganda Shillings eight million only) shall carry interest at 15% per annum from the date of the decision until payment in full. - 5. Each party shall bear its own costs.

Either party not satisfied with this decision has the right to appeal to the High Court of Uganda within 30 days from the date hereof.

Dated at MOROTO this ......... day of 2018.

MEDDIE B. MULUMBA PRESIDING COMMISSIONER