Lutaaya v Attorney General and 6 Others (Miscellaneous Cause 256 of 2021) [2024] UGHCCD 131 (20 August 2024)

# 5 **THE REPUBLIC OF UGANDA**

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

### **(CIVIL DIVISION)**

#### **MISCELLANEOUS CAUSE NO.256 OF 2021**

**LUTAAYA MUHAMMAD :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

### 10 **VERSUS**

- **1. ATTORNEY GENERAL** - **2. MUHENDA DICKSON** - **3. OCHO JOHNSOH AKA JADONG** - **4. ABBEY** - 15 **5. BAKAHUMBYA PAUSON** - **6. AYESIGA LAWRENCE** - **7. LWAMUSAYI FRANTILE ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **BEFORE: HON. JUSTICE ESTA NAMBAYO**

### **RULING**

20 The Applicant, Lutaaya Muhammad brought this application under **Sections 2, 3, 4, 5, 6, 7, 8 & 10 of the Prevention & Prohibition of Torture Act, 2012, Sections 3, 4, 6, 7, 9 & 10 of the Human Rights (Enforcement) Act, 2019, Section 98 of the Civil Procedure Act and Rules 5 (1), 6 (1) (a) & 7 (1) of the Judicature (Fundamental & Other Human Rights and Freedoms) (Enforcement Procedure) Rules,** against the Attorney General, Muhenda 25 Dickson, Ocho Johnson Aka Jadong, Abbey, Bakahumbya Pauson, Ayesiga Lawrence and Lwamusayi Frantile (hereinafter referred to as the 1st, 2nd, 3rd, 4th, 5th, 6th & 7th Respondents respectively seeking for declarations and orders of this court that: -

- **1. The Applicant's fundamental rights were violated by the 2nd, 3rd, 4th, 5th, 6th and 7 th Respondents.** - **2. The 1st Respondent is vicariously liable for the actions of the 2nd, 3rd, 4th, 5th, 6th** 30 **and 7th Respondents.** - **3. The Applicant be compensated by the Respondents for the physical and mental harm, lost employment opportunities, material damage and loss of earnings.** - **4. The Respondents pay the Applicant's medical and psychological care bills from** 35 **the date of such injuries until full recovery.** - **5. The Respondents pays school fees for the Applicant's children until the Applicant's full recovery.** - **6. The Respondents compensate the Applicant the current market value of his confiscated motor vehicle and cycle, all household items taken plus Ug.shs.** 40 **1,600,000/= (Uganda shillings one million six hundred thousand).** - **7. The 2nd, 3rd, 4th, 5th, 6th and 7th Respondents be found criminally liable for the gross injustices occasioned against the Applicant.**

## **8. The costs of this application be borne by the Respondents.**

The grounds for this application are premised on the affidavit of Mr. Lutaaya Muhammad 45 but briefly are that: -

- **1. The Applicant was an able bodied special hire driver at the Makindye Petro City Fuel station stage and a law abiding citizen of Uganda.** - **2. On the 11th day of November, 2018, the Applicant was without any lawful justification arrested and detained by the 2nd, 3rd, 4th, 5th, 6th and 7th Respondents**

- 50 **being officers of the flying squad of the Uganda Police Force at Katwe police station.** - **3. The Applicant was subjected to dehumanizing and or inhumane treatment or torture by the 2nd, 3rd, 4th, 5th, 6th and 7th Respondents, whereof the Applicant sustained permanent bodily deformities and or injuries.** - **4. As a result of the said torture and inhumane treatment by the 2nd, 3rd, 4th, 5th, 6th** 55 **and 7th Respondents, the Applicant sustained permanent body injuries to his spine and limbs, whereof he currently can no longer support himself and uses crutches to walk.** - **5. The 2nd, 3rd, 4th, 5th, 6th and 7th Respondents committed the said acts of torture** 60 **against the Applicant whilst in the ordinary course of their employment as officers of the Uganda police force.** - **6. The Applicant has permanently lost any means of livelihood as a result of the unlawful torture and or inhumane treatment by the 2nd, 3rd, 4th, 5th, 6th and 7th Respondents.** - **7. The unlawful acts of torture by the 2nd, 3rd, 4th, 5th, 6th and 7th** 65 **Respondents are a violation of the Applicant's fundamental constitutional right to freedom from torture, inhuman and degrading treatment.** - **8. The 2nd, 3rd, 4th, 5th, 6th and 7th Respondents unlawfully confiscated the Applicant's property to wit a Toyota Premio (UAQ 927N), motor cycle (UED** 70 **711M), household items and money, whereof the same have to date never been returned to the Applicant.** - **9. The actions for the 2nd, 3rd, 4th, 5th, 6th and 7th Respondents in paragraph 7 hereof and the unlawful house search of the Applicant's house are a violation of the Applicant's right to property and privacy to premises.**

- 75 **10. The Applicant has suffered gross mental anguish, physical incapacitation or loss of his limbs and livelihood, all caused by the unlawful acts by the 2nd, 3rd, 4th, 5th , 6 th and 7th Respondents.** - **11. As a result of the said torture by the 2nd, 3rd, 4th, 5th, 6th and 7th Respondents, the Applicant's children have since dropped out of school as the Applicant can** 80 **no longer carry out any gainful employment activity.** - **12. This Honourable Court has jurisdiction to grant the orders sought under the law and it is in the interest of justice that the instant application be allowed and orders sought be granted as prayed.**

The 1 st, 5th and 6th Respondents filed an affidavit in reply opposing this application while the 2 nd, 3rd, 4th and 7th 85 Respondents did not file their affidavits in reply.

### **Brief facts**

The brief facts of this case are that, the Applicant was arrested and charged at Makindye Chief Magistrate's Court, vide; Criminal Case No. 152/2019. When he appeared before the trial Magistrate, his case was referred to this court for trial on grounds that the Applicant 90 had been tortured. It's the Applicant's claim now that he was tortured while in police custody by the 2nd, 3rd, 4th, 5th, 6th and 7th Respondents who are police officers and that he sustained grievous bodily injuries, permanent deformity and lost his personal property as a result of the torture by the said Respondents, hence this application.

### **Legal representation**

95 Learned Counsel Denis Enap represents the Applicant while the Learned State Attorney Mark Muwonge is for the 1st, 5th & 6th Respondents. I have had the opportunity to read and consider the written submissions filed by Counsel as directed by this court. The 2 nd, 3rd and 4 th Respondents did not file their affidavits in reply and submissions.

- **1. Whether this Court is vested with the powers to entertain the instant application.** - **2. Whether the Applicant's Human Rights and Freedoms were violated and if so, by whom.** - **3. What remedies are available to the parties.**

# 105 **Preliminary objection**

In his submissions, Counsel for the Applicant raised a preliminary objection that the 1 st, 5th and 6th Respondents did not file their affidavit- in - reply within the prescribed 15 days from the date of service with the application and that Bakahumba Pauson, the officer who swore the affidavit – in- reply on behalf of the 1st and 6th Respondents did not file before court 110 the written authorization as required by law.

# **Failure to file the affidavit in reply in time**

On this ground, Counsel submitted that the timelines that apply to a plaint and written statement of defense also apply to applications and affidavits -in -reply. That an affidavit in reply to an application must be filed within 15 days from the date of service of the 115 application. Counsel explained that where the Respondent files the reply out of time, it is incumbent upon him/her to seek leave of Court to file such reply out of time. He relied on the cases of **Stop and See (U) Ltd –v- Tropical Africa Bank HCMA No. 333/2010, The Ramgarhia Sikh Society & 2 Ors. –v- The Ramgarhia Sikh Education Society & 8 Ors. HCMA No. 352/2015, Makula International Ltd –v- His Eminence Cardinal Nsubuga &** 120 **Anor, SCCA No. 4/1981 and Mulindwa George William –v- Kisubika Joseph, SCCA No. 12/2014.**

Counsel submitted that time limit is not a mere technicality, but it is there to be observed and justice may be defeated if there is laxity. He emphasized that in an application where the proceedings and evidence are supplied by affidavits, and there is no opposing affidavit, 125 the application stands unchallenged. He cited the case of **Madhvani Group Ltd –v-Alexander David Simbwa & 2 Ors, HCMA No. 1160/2012.**

He also relied on Order 9 rules 10 & 20 of the CPR and prayed that this court be pleased to disregard the affidavit in reply filed out of time without leave of court so that leave is granted to the Applicant to proceed ex-parte.

On the ground that the 5th 130 Respondent, Mr. Bakahumba Pauson, did not present written authority to swear the affidavit in reply on behalf of the 1st and 6th Respondents, Counsel relied on Order 1 rule 10(2) CPR and the cases of **Binaisa Nakalema & 3 Others –v-Mucunguzi Myers HCMA No. 460 of 2013; SimbamanyoEstates Limited & Anor –v-Equity Bank Uganda Limited & 3 Others HCMA No. 224 of 2021 and Mukuye & 106** 135 **Others –v- Madhivani Group Ltd.**

He explained that in fulfilment of the above requirements of the law, it is mandatory that a person swearing an affidavit on behalf of the others must have their authorization in writing, attached to the affidavit as evidence and such authorization must be filed on the court record. That in this case, the 5th Respondent having failed to do so, this court be pleased to find that the affidavit in reply filed by the 5th 140 Respondent purporting to be filed on behalf of the other two Respondents is incurably defective and should be struck off the court record.

### **Submissions in reply**

In reply, the Learned State Attorney relied on the case of **Dr. Lam Lagoro James –v- Muni University, HCMC No. 07/2016** where Justice Stephen Mubiru noted that; -

145 "Affidavits are a way of giving evidence to the court other than by giving oral evidence. They are intended to allow a case to run more quickly and efficiently as all parties know what evidence is before the Court. Consequently, time constraints applied to defenses may be misplaced when applied to affidavits."

That basing on the above decision, this court should find that the 1st Respondent's affidavit 150 in reply was filed within time. That in the alternative and without prejudice to the foregoing, this Court should invoke its inherent powers under Section 33 of the Judicature Act and

Page **6** of **16**

Section 98 of the CPA to overrule the objection so that the matter is heard on the merits. He contended that in the case of **Joanita Nyanzi –v- Attorney General, HCCS No. 524 of 2015**, Justice Namanya Bernard validated a defence filed out of time for the reason that the Defendant showed a keen interest to be heard. That in the instant case, the 1st 155 Respondent has shown a keen interest to be heard by filing a Reply and also attending all the Court proceedings. That the affidavit in reply is properly before this Court and the Respondents should not be condemned unheard. Counsel submitted that the Applicant has not shown that he will suffer any prejudice or miscarriage of justice if the affidavit is considered.

#### 160 **Analysis**

In the case of **Labu Saidi Chepchulei –v- Ocen Ambrose & Ors, MA No.10 Of 2022**, Justice Henry Peter Adonyo noted that; -

"the 15 days' timeline provided for in the civil procedure rules for a party to file his or her defense apply in situations of affidavit evidence as well. Once a party files his affidavit in

165 reply after the 15 days from the date of being served with the application the same party is considered to be outside the doors of justice. Once a party finds himself outside the doors of justice then he ought to seek leave of court to have the same affidavit in reply filed out of time or validated by court."

In this case, evidence shows that the application was served on the 1 st Respondent on the 27th of September 2021 and on the 2nd, 3rd, 4th, 5th and 6 th Respondents on the 5th 170 day of October, 2021. The 7th Respondent was served on the 7th day of October, 2021. This means that the 15 days' timeline elapsed on the 12th , 20th and 22nd of October, 2021 respectively. The 1 st, 5th & 6th Respondents filed their joint affidavit in reply on the 16th of August 2022, almost nine months' later, without leave of court, while the rest of the Respondents did not 175 file their affidavits in reply at all. I would, in the circumstances, find that the affidavit in reply filed by the 1st, 5th and 6th Respondents is improperly before court as it was filed out of time without leave of court and therefore, it is hereby struck off the court record. This now leaves the 1 st, 5th and 6th Respondents without a reply to the application.

In the case of **Samwiri Mussa -v- Rose Achen (1978) HCB 297,** where Ntabgoba Ag. J. (as

180 he then was) held that;

"where facts are sworn to in an affidavit and they are not denied or rebutted by the opposite party, the presumption is that such facts are accepted."

In this case therefore, since the Respondents have no affidavit in reply, they are presumed to have conceded to the facts of the application.

- 185 On the objection that Mr. Bakahumbya Pauson did not file the letter authorizing him to swear an affidavit in reply on behalf of the 5th and 6th Respondents, I have had the opportunity to look at **Order 1 rule 12 of the CPR.** It provides for appearance of one of several plaintiffs or defendants for others and states as follows; - (1) Where there are more plaintiffs than one, any one or more of them may be 190 authorized by any other of them to appear, plead or act for that other in any proceedings, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for that other in any proceeding.

(2) The authority shall be in writing signed by the party giving and shall be filed in the

195 case.

In this case, apart from the heading of the affidavit in reply that seems to suggest that the deponent is swearing the affidavit on behalf of the 1 st, 5th and 6th Respondents, it is not stated anywhere in the affidavit that the deponent was authorized to swear the affidavit on behalf of the said Respondents. There is also no written and filed authorization showing that 200 the deponent was authorized to swear the affidavit on behalf of the Respondents as required by law.

Therefore, I uphold the preliminary objections raised by Counsel for the Applicant and order that the affidavit in reply be and is hereby struck off the court record and the application proceeds ex-parte.

## **Consideration of the merits.**

# **Issue 1. Whether this Honourable Court is vested with powers to entertain the instant application.**

210 This application was brought under the Human Rights (Enforcement) Act, 2019, the Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules, 2019 and the Prevention & Protection of Torture Act, 2012.

## **Section 2 of the Human Rights (Enforcement) Act, 2019 provides that; -**

In this Act, unless the context otherwise requires—

- 215 "competent court" means a high court or a magistrates' court; While S. 4 of the Human Rights (Enforcement) Act, 2019, provides for enforcement of rights and freedoms by the High Court and it states as follows; (1) The High Court shall hear and determine any application relating to the enforcement or violations of \_\_\_\_\_\_\_ - 220 (a) non derogable rights and freedoms guaranteed in article 44 of the Constitution; (b) other rights, duties, declarations and guarantees relating to fundamental and other human rights and freedoms envisaged in article 45 of the Constitution;

I would find therefore, that the High Court is a competent court to hear this case.

**Issue No. 2 Whether the Applicant's Human Rights and Freedoms were violated and if**

225 **so, by whom?**

## **Submissions.**

Counsel relied on the affidavit in support of the application where the Applicant states that he was able bodied carrying on with his business normally when on the 11th of November, 2018, he was arrested while on duty. That he was not informed of the reason for his arrest 230 and upon arrest, he was detained for more than 48 hours without being charged in any court. That the Applicant was tortured and taken to Mulago Hospital only after he had collapsed during parade on the 10th /12/ 2018.

Counsel further submitted that the Applicant's house was searched without a search warrant and in the process, the 1st Respondent's officers took his property and have never returned 235 it to him to date.

He relied on the Police bond form, the medical examination report showing that the Applicant was admitted at Mulago Hospital and a report showing that he suffered injuries as a result of torture.

Counsel cited Art. 23(1) (3) & (4) (b) of the Constitution and the cases of **Gregory Kafuzi –** 240 **v- The Attorney General [200] KALR, Issa Wazembe –v-Attorney General HCCS No. 154 of 2016 and Lutaaya –v- Attorney General HCCS No. 461 of 1989 and Agaba Keneth –v-Attorney General and 3 others HCCS No. 247 of 2016, Article 2 of the United Nations Convention Against Torture, Article 3 of the Human Rights Convention, Article 5 of the Universal Declaration of Human Rights, Article 5 of the African Charter on Human and**

- 245 **People's Rights; Article 44(a) of the Constitution of the Republic of Uganda and S.10(1) of the Human Rights (Enforcement) Act, 2019** and contended that the Applicant has demonstrated that his fundamental rights and freedoms were violated by the Respondents. - On the argument that the 1st Respondent is liable for the acts of the 2nd to 7th Respondents, Counsel relied on the case of **Muwonge –v- Attorney General [1967] EA 17** cited with 250 approval in **Kaggwa Vincent –v- Attorney General HCCS NO. 391 of 2014;** where court held that in Civil Proceedings the Government as master and Employer of Police officers is vicariously liable or responsible for acts of police officers done within the course of their duty. He prayed that this court be pleased to find that the Respondents' treatment of the Applicant amounted to violation of his Human Rights and Freedom as shown above.

255 **Analysis**

In the case of **John Cheruiyot Rono -v- Attorney General, Petition No. 536 of 2015,**

## **(Kenya), Court observed that;**

"The burden of proving violation of a right or freedom enshrined in the Constitution rests on the person alleging the violation"

260 In **Matiba –v- Attorney General [1990] KLR 666,** it was noted that such burden is to be discharged on a balance of probabilities by the Petitioner showing that the right existed and that it has been violated and the manner of such violation.

### **Article 44(a) of the 1995 Constitution of Uganda provides that**;

"Notwithstanding anything in this constitution, there shall be no derogation from 265 enjoyment of the following rights and freedoms-

- (a) freedom from torture and cruel, inhuman or degrading treatment or punishment." The Constitution does not define "torture" or "inhuman" or degrading punishment" In Black's Law Dictionary, 11 th Edition at page 936, "Inhuman treatment" is defined in reference to family law as 'physical or mental cruelty so severe that it endangers life or - 270 health.' while "torture" is defined as 'the infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure.' Article 1 of the United Nation on Convention against Torture, and other Cruel, Inhuman and Degrading treatment or punishment, adopted by the UN General Assembly in 1984 defines torture as: - - 275 "…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purpose as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person, has committed or is suspected to having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind. When such pain or suffering is 280 inflicted by or at the instigation of or with the consent or acquiescence of public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

S.7 (2) of the Prevention and Prohibition of Torture Act, 2012, provides that; "for the purposes of determining what amounts to cruel, inhuman or degrading treatment

285 or punishment, the court or any other body considering the matter shall have regard to the definition of torture as set out in [section 2](https://ulii.org/akn/ug/act/2012/3/eng@2012-09-18#part_II__sec_2) and the circumstances of the case."

S.2 (1) of the Prevention and Prohibition of Torture Act, 2012, provides that torture means 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 the consent or 290 acquiescence of any person whether a public official or other person acting in an official or private capacity for such purposes as—

(b) 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;

- The Applicant states in his affidavit in support of the notice of motion that when he was arrested on the 11th 295 day of November, 2018, he was detained by the Respondents at Katwe Police Station. That in the night of the same day, the 2nd, 3rd, 4th & 5th Respondents took him out of the police cells upon the instructions of the 6th and 7th Respondents, bundled him up into the boot of motor vehicle, Registration number UAZ 440D and took him to Kabaka's lake in Ndeeba, where he was tied up with ropes and clothes. That he was 300 also blindfolded and beaten using glass bottles and the buts of their guns. He was kicked all over his body with heavy boots as they stepped on his head, neck and back. - The Applicant further stated that later on in the same night, he was again bundled up into the boot of the same vehicle and driven to his home for a search of his house which was carried without without a search warrant. That the 2nd, 3rd, 4th and 5th Respondents entered 305 into his house with polythene bags full of car number plates they got from Katwe Police Station, they scattered them in his house and used them as evidence against the Applicant saying that he had stolen cars. That he was again beaten repeatedly and money amounting to Ug.shs. 1,600,000/=, his motor cycle Registration Number UED 711M, log books for his car and motor cycle and other household items were taken. - 310 The Applicant further stated that he was taken back to Katwe Police Station cells before being transferred to Natete Police Station and subsequently to Mulago Hospital after he fainted while at the suspects' parade.

That at Mulago, he was admitted and treated for blunt trauma to his spine, spinal cord compression and zygomatic borne fracture. He was subjected to a comprehensive medical 315 examination and found to be permanently incapacitated and he can no longer walk without crutches (see Exh, "A").

The Applicant also informed court that he visited the African Centre for Treatment and Rehabilitation of Torture Victims and it was established that he was tortured. Medical reports to confirm the above averments by the Applicant were tendered in Court.

320 I have looked at the evidence presented by the Applicant. I have also looked at the medical report from Mulago Hospital tendered in court as Exh. "A" and another report titled Istanbul Protocol Medical Report which cites a report said to be from ACTV, tendered in court as Exh. "B".

I have considered the Applicant's evidence that he was arrested on the 11th November, 2018 and was granted a police bond on the 31 325 st December, 2018. Annexure "A", an Inpatient discharge form from Mulago Hospital shows that the Applicant was taken to Mulago Hospital by Police with bodily injuries including a blunt trauma to the spine, spinal cord compression and a Zygomatic Bone Fracture. Rt.

That the Applicant had a history of having collapsed in cell where he reported to have 330 been tortured and hit on the head, back and the neck and that he had a severely tender cervical and lumbar spine.

The Applicant was admitted at Mulago Hospital and discharged on the 31st December, 2018 by Dr. Ssembuya Ignatius.

I find the Applicant's evidence so consistent that I find no reason to doubt that he was in 335 police custody and that his rights were violated when he was detained beyond the 48 hours and tortured while in Police Custody.

Therefore, I find that the Respondents' actions of detaining the Applicant for more than 48 hours from the time of his arrest without charging him in any court amounted to violation of his right under Article 23(4) of the 1995 Constitution of Uganda and; by subjecting the Applicant to torture while in Police custody, the 2nd, 3rd, 4th, 5th, 6th and 7 th 340 Respondents violated the Applicant's right under Article 44(a) of the Constitution.

Page **13** of **16**

### **Issue No. 3 What remedies are available to the parties.**

The Applicant prayed for compensation for the physical and mental harm caused by violation of his rights and freedoms, loss of employment and earnings, payment of the 345 Applicant's medical and psychological care bills from the date of such injuries until full recovery; payment of school fees for his children and compensation at the current market value for his confiscated motor vehicle and motor cycle, all household items taken plus Ug.shs. 1,600,000/= (Uganda shillings one million six hundred thousand).

- Counsel relied on Article 50 (1) of the Constitution, Section 10 (1) & (2) of the Human 350 Rights (Enforcement) Act, 2019, Section 27 of the Civil Procedure Act and cases of; **Osotraco Limited –v- Attorney General HCCS No. 1380/1986, Issa Wazembe –v- Attorney General, HCCS No. 154/2016, Agaba Kenneth –v- Attorney General & 3 Ors, HCCS No. 247/2016, Jasper Natukunda –v- Attorney General & Anor. HCCS No. 1/2014, Stanbic Bank Uganda Limited –v- Hajji Yahaya Sekalega T/A Sekalega Enterprises, HCCS No.** 355 **185/2009, Charles Acire –v- Myaana Engola, HCCS 143/1993, Kibimba Rice Ltd –v- Umar Salim, SCCA 17/1992 and George William & 2 Ors. –v- Christopher Nswemu & Anor. HCCS No. 330 of 2014** to contend that the Applicant has in his affidavit demonstrated that there was gross violation of his rights and freedoms by the Respondents and as such, he is entitled to compensation. - 360 He submitted that the Applicant will never regain his movement since his spinal cord was grossly damaged, lost his source or livelihood and that the applicant will never be able to carry out any gainful income generating activity or business since he is physically incapacitated. That in the circumstances, the Applicant prays for compensation of Ug.shs. 2,000,000,000/= (two billion Uganda shillings). - 365 For costs, counsel submitted that costs are awarded at the discretion of the court and that they always follow the event unless for some good reason court directs otherwise. He relied on Section 27 of the CPA.

### 370 **Analysis**

### **General damages**

In **Storms –v- Hutchinson (1905) AC 515,** court noted that;

"General Damages are the direct natural or probable consequence of the wrongful act complained of and include damages for pain, suffering, inconveniences and anticipated 375 future loss."

In the case of **Luzinda –v- Ssekamatte & 3 Ors HCCS No.366 of 2017**, court noted that; "it is trite law that general damages are awarded in the discretion of court. Damages are awarded to compensate the aggrieved fairly for the inconveniences accrued as a result of the actions of the defendant. It is the duty of the claimant to plead and prove that there 380 were damages, losses or injuries suffered as a result of the defendant's actions."

The purpose of general damages is to restore the aggrieved person to the position he/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, HCCS No. 143 of 1993 and Kibimba Rice Ltd –v- Umar Salim, SCCA No. 17 of 1992.)**

385 In **Uganda Commercial Bank –v- Deo Kigozi (2002)1 EA 305**, Court noted that;

"while assessing general damages, the court should mainly be guided by the value of the subject matter, the economic inconvenience that the Respondent may have been put through and the nature and extent of the injury suffered."

I have already established that the Applicant was tortured by the Respondent's while in 390 police custody. The Applicant informed court that he has since the torture been confined to crutches. That he lost his businesses and property and that he has a lot of pain. It is my finding that the Applicant qualifies for general damages for the inconvenience, pain and trauma that he suffered due to the actions of the 1 st Respondents officers. The Applicant has not guided court on how he arrived at the amount that he has claimed. I find in the 395 circumstances that fifty million Uganda shillings [UGX. 50,000,000/-] is reasonable as general damages.

In regard to the Applicants claim for medical bills, school fees, money picked from his house during the search and the stolen vehicle, motor cycle and house hold property, I find that the evidence presented is not enough to sustain the claim.

400 I agree with Counsel for the Applicant that costs follow the event (see S.27(1) CPA).

Therefore, in the final analysis, the 1st Respondent is hereby ordered to pay the Applicant as follows: -

- **1. UGX. 50,000,000/- [fifty million Uganda shillings only] as general damages.** - **2. Costs of the suit.** - 405 I so order.

**Dated, signed and delivered on ECCMIS on this 20th day of August, 2024.**

**Esta Nambayo**

**JUDGE**

**20th** 410 **/8/2024.**