Lutaya v Attorney General (Civil Appeal 10 of 2002) [2004] UGSC 42 (19 March 2004)

Full Case Text

Personal Ory

# Concurrent findly g Fact by REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT MENGO

[CORAM: ODOKI, CJ; ODER, TSEKOOKO, MULENGA AND KANYEIHAMBA, JJ. S. C]

## CIVIL APPEAL No.10 OF 2002

#### BETWEEN

A. K. P. M. LUTAYA ...................................

#### AND

ATTORNEY GENERAL ....................................

[Appeal from the judgment of the Court of Appeal at Kampala (Kato, Okello & Mpagi-Bahigeine, JJ. A) dated 6th March, 2002 in Civil Appeal 49 of 2001].

JUDGMENT OF TSEKOOKO, JSC: This appeal arises from the the Court of Appeal which upheld decision of the judgment of the Principal Judge dismissing the appellant's action.

There is a little confusion in the recording of evidence from witnesses and the numbering of witnesses in the trial court record. But the facts appear clear. A. K. P. M. Lutaya, the appellant, at all time material to these proceedings, was the registered proprietor of a piece of land comprised in Leasehold Register volume

$\mathbf{1}$

1425 Folio 13 Block 97 Plot 1, Kyaggwe, in Mukono District. He established a farm in one part of the land, (hereinafter referred to as the "land"). He brought an action in trespass against the Respondent Attorney General in the High Court. In the action he claimed for general damages, special damages for trespass to the land and for a permanent injunction.

In the plaint, it was alleged that during February 1995, 600 Government soldiers, who were deployed at Mpoma Satellite Station, trespassed upon the appellant's land and caused substantial damage to his farm and his exclusive and demarcated forest. It was also alleged that the soldiers together with their families cut down trees and removed valuable timber for construction of houses to live in and for firewood and charcoal burning. In the process the soldiers ruined the appellant's hitherto well preserved and treasured forest cover. In his written defence, the respondent admitted the presence of some soldiers at the station, but denied they were 600. He also denied knowledge of the existence of a farm and the alleged damage to it by the soldiers. The Respondent stated further that if any soldiers trespassed, they did so on their own floric.

the trial court, six issues were framed In for determination. Issue No.4 which was key, both during trial and on appeal, was whether the Attorney General was liable for the acts of the soldiers belonging to

$\mathbf{2}$

The learned Principal Judge held that the UPDF. Attorney General was not liable. The appellant appealed to the Court of Appeal on six grounds. The fourth ground upon which the court decided the appeal and which was the same as issue No.4 in the trial court, was whether the Respondent was vicariously liable for the acts of the soldiers. The Court of Appeal answered this in the negative and so dismissed the appeal.

The appeal before us is on two grounds, the first of which was amended with leave of this court. The grounds are formulated as follows: -

- The learned Justices of the Court of Appeal erred 1. in law in holding that the Attorney General was not vicariously liable for the acts of the soldiers of NRA. - The learned Justices of the Court of Appeal erred 2. in law and fact when they held that the crux of the case was vicarious liability of the Attorney General and refused to entertain other grounds of the appeal raised.

In substance these grounds are about the same thing. Submitting on the first ground, Mr. Semuyaba, for the appellant, argued that on the evidence available, the Court of Appeal erred in holding that the acts of the soldiers did not bind the Attorney General and that the Court misdirected itself and misinterpreted the evidence of Brigadier Nanyumba (PW6) when it held that

his evidence was hearsay. Counsel contended that, the soldiers who cut the appellant's timber and trees did so in Ehe course of their duty. He furE.her contended that the Court wrongly applied the principle of vj.carious liability as enunciated in the decision of Muwonge Vs Attorney General (1967) 8A.7. In support. of his contention Ehat the AtLorney General is liable, Iearned counsel relied on Kafu:nbe-Mukasa Vs Attorne , General (1984) HCB 33, .r. Barugahare Vs At.torney liability principles in Muwonge case to hold t.hat the respondent was not liable for the alleged acts of the soldiers. Learned St,ate Attorney also supported the view of the Principal Judge who had opined that Brigadier Nanyumlca gave evidence to support the appellant as a friend, contending that the Brigadier's evidence as weII as Ehat of the appellant himself is hearsay. The State AtLorney argued that the cases clted by appellant's counsel are distinguishabLe and that if the soldiers went to the land they were not officially ordered, employed or authorised to trespass on the appellanE's }and. General Civil Appeal No.28/95 and Mutyaba Leonard SembaEya Vs Attorney ceneral - Civil Appeal 2t/94 (s.c) (both unreported). Mr. Wamambe, SEat.e Attorney, supported the decision of t.he Court of Appeal , arguing that the court acted properly and relied on vicarious

In his content.ions, Mr. Semuyaba relied evidence of four witnesses. These were himself (PW. l- ) , Kibuuka ,Joseph (pWS ) mainly on the the appellant who was the

appellantts worker and driver and Brigadier Nanyumba (Pw6) .

In the Court of Appeal , Oke11o, J. A, delivered the lead judement with -which \_th€ o\_thqr members of Ehe "orri qoncurred. The learned .fustice of Appeal- first consj-dered the fourth ground of appeal before he upheld the decision of the learned Principal Judge. I have already alluded Lo the fourth ground.

In this appeal I. note that both the trial court and the first appellate courE have made concurrent findings of fact that t.he evidence of 'the appellant did not prove vicarious liabitity against. the respondent. In such a sit.uat.ion Ehe practj-ce has been that a second appellate courL should not. lightly interfere with such concurrent findings of fact, parEicularly where a t.rial judge has made a finding on credibility of witnesses whose evidence is in confl-ict. Tt has been held by Ehe privy Council in Caldeira Vs cray (1935) 1 ALIJ 8R.540 thaL:

t'Where a trialJudge has come to a conclusion upon a pure questiorl of fact, the appe1JaEe tribunal, cannot, merely because it has been decided in one way by the ttial judge, abdicate their duty to review his decision, and to reverse it, if they deem iC to be wrong.,,

The Privy Council in that. judgmenE cautioned that. the functions of the appellat.e t,ribunal when dealing with a pure quesEion of fact in which quest.ions of credibility

are involved are limited in their character and scope. In other words where a questi\_on of credibility of wiLnesses has been resolved by a trial Judge after proper evaluation of the facts, his findings should normally not. be interefered wit.h. But where evaluat.ion of fact.s is erroneous, an appellat.e court can do the evaluation and come to it.s own conclusions.

This is illustrated further by a decision of the House of Lords in Ben:nax Vs Austin Motor Co. Ltd (1955) l AlI E. R. 326, where the House of Lords hel\_d (on 2"d appeal) that:

nAn appeTTate CourE, on an appeal frorn a case tried before a judge a7one, shouJ.d not light.ly differ from a finding ot the trjal judge on a question of faet, buE a djstjnction in thjs respect must be drawn between the perception of facts and the eval\_uation of facts. Where there is no question of the credibil.ity of witne,sses, but the soJ,e question is the prope r inference to be drawrr frorn specific factst an appefJ,ate court is in as good a poslEjoa to evaJ,uate the evidence a,s the trial judge, and should form iEs oi,n independent opinion, Ehough jt wilt give weight to ehe opinion of the trial judge.',

relied on Muwonge Vs General and argued that t.he acts of Ehe army personnel who collected Eimber and crops from In this case at the Eria1 in the High Court., only the appellanE. and his witnesses gave evidence. The respondent adduced no evidence. The appelLant,s counsel

the appellant's farm to supplement their Government provisions were acts done in the course of their employment.

In his judgment the learned Principal Judge first disposed of the 3rd issue which was "whether NRA soldiers invaded the plaintiffs farm land and caused extensive damage to the crops thereon and forest cover" before he resolved the fourth issue which was on vicarious liability. The learned Principal Judge alluded to the relevant averments in paragraphs 2,3 the plaint, to the evidence of and $4$ of the appellant, that of Semucho (PW4) of Dr. Alum (PW 3) and Brigadier Nanyumba before he concluded that the plunder of the farm was done from or prior to 1973 by soldiers of the pre-Nanyumba era as well as by ordinary people. He held that Nanyumba was a liar who was helping a friend, the appellant.

The learned Principal Judge went so far as to require that the appellant should have produced evidence of the places where the burning charcoal took place, the particulars of the soldiers, of trucks, of the market where the charcoal had been sold and even one or two customers to whom the soldiers had sold the charcoal. He concluded that "it was not only the NRA/UPDF who the extensive damage caused to the property". Consequently, he $3rd$ answered the issue in the negative thereby holding definitely that the respondents servants did not participate in the

$\bf{7}$

damage complained of. Having thus made that finding, Lhe learned Principal . Iudge found it easier to answer the 4th issue also in the negat.ive. Wit.h great respect these findings do not have a sound basis and. in my view the inferences of the principle Judge are wrong. Brigadier Nanyumba was not. cross-examined on his evidence. There was no ot.her evidence to contradi-ct him. To brand him a liar when his evidence was not challenged is unfair. The fact t.hat he had known the appellant was not good enough for 1abeI1ing him a liar and hoJ\_ding him unreliable. He testified that he was E,he Chief-of-Staff aL the material- time and continued: -

uMr. Lutaya cornplained about his fann Dear .[JuJcono. ?his is a copy of the comunication (exhjbit P.3). I received a copy of it,. We as the army were occupying the area and that, the army had desEtoyed . Lutaya,s property. When I receiwed t&ls coarmuni ca t jon it was my duty to task the commander. Z do not remem.ber what the response of the uni t eommander was. But he confirmed that UpDp was occupyingr the land near Mr. IJlutayas and. that they had damagred his crops. f was not jnformed of the nurnber of the troops...,

?he state for the commander some tirnes needs of may take may not be able to the army. The the initiative to ca ter Local, secure

### provisions. So Mr. Lutaya's complaint is not unusual"

This evidence appears to be that of a neutral witness who was doing his best to recollect what he could remember

The appellant testified about the crops, the fruits and the trees planted on his farm. He also stated that there was a natural forest and that in 1995 soldiers who were guarding Mpoma satellite station were without provisions. According to him:

"From the day the soldiers arrived was the invasion of my managed forest to collect timber for the construction of their huts. They cut my forest by literally invading my forest and took it over. When they were challenged the soldiers said the commander had sent them. I went to complain to the commander..................... complained $\mathbf{I}$ that $mv$ workers were frightened out of their wits. The commander said they wanted shelter and the men were sent by orders from above. They needed huts and firewood; they needed water.................................... started around January 1995 or even earlier. Since then this has continued up to date. $\boldsymbol{I}$ established there were about 300 soldiers of $NRA$

Eventually the population grew to about 600 people, including wives and children................. Those who are transferred oJ,d huts they for were heal, th destroying the reasons..-.-.-.-.\_.. .

Each t,ime there js a reshuffTe, there is new cutting. When I fjled Ehe suit the cutting had taken one year.

As a resuft my forest reserve has been severely depleted. It continues to be harvested at randorn without inwentory, without remuneration and wjthout any arrangement whatsoever. The soJ.diers have concentrat.ed on naturaJ, fores: and on the high and ta77 trees orz the deliberately managed forest,,

In his testimony Nanyumba implicitly evidence. supported this

The appellant was cross-examined at subsEantially repeat.ed what he st.at,ed in chief about the destruction of the burning and ferrying of poles. length and he in examination forest, charcoal

Edward Semucho (PW4) had worked on the farm before 1994. His evidence shows t.hat during Ehe t,ime he was at the farm, Ehe soldiers were not. very many. He also implied that the damage claimed by the appellant. was rather exaggerat,ed and Ehat, much of Ehe farm had. been neglected. According Eo his evidence, fruit Lrees

(Avocados, bananas, mangoes jackfruits)were there and by 1994 Ehey were bearing fruits. When he revisited the farm in 1996, Avocados, mangoes and jackfruits had been roughly handled and damaged. He did not say who damaged them because at. the material time before his return in 1995 he was not at the farm. According to Semucho, soldiers went Eo the farm from 1992. By l-996 there were many huts of soldiers and ,,bush, from the farm had been cut to build these hut.s. The soldiers used to collect firewood from the farm. In my opinion this evidence tended to support, the appellant as to Erespass, cutting of tress and collection of firewood.

Ssewadde Sonko (pw3) an Agriculturist and one of Ehe expert witnesses inspect.ed the appellant's farm and produced his report (exhibitp.4) in which he assessed the value of the 1oss. His evidence and that of Moses Kayima who signed the said report. was hardly challenged.

In April t L99't, Lhe appeltant engaged Dr. John Alum, a forest expert. to value the damage to t.he farm. He and his assistants produced a report (exhibit p.2). AE the time he saw no evidence of charcoal burning but trees had been harvested from the forest. He saw some huts. For security reasons, he could not photograph the huts occupied by soldiers.

In the appeal Court of Appeal , as was disposed of afE,er already pointed consideration of out, the only one

ground, namely ground 4, which hinged on vicarious liability of the respondent because of the activities of the soldiers on the appellant's farm. In his lead judgment Okello, JA, cited passages from the Muwonge (supra) in which Sir Charles Newbold, case the President of the E. Africa Court of Appeal, set out the principles of vicarious liability. The learned Justice of Appeal then referred to a passage in the judgment of the Principal Judge from which the learned Justice of Apeal concluded that the Principal Judge "certainly tended to give a narrower interpretation to the principle of vicarious liability of a master than was stated in Muwonge Vs Attorney General"

Thereafter he stated the principle to be: -

"Once the acts were done by the servant in the course $\quad \textit{of} \quad$ his employment, it is immaterial whether he did it contrary to his master's orders or deliberately, wantonly negligently or even criminally or did it for his (servant's) own benefit, the master is vicariously liable so long as what the servant did was merely a manner of carrying out what he was employed to carry out".

In the Court of Appeal counsel for the appellant had argued that by cutting poles to construct huts to live in, the soldiers' conduct made the respondent liable vicariously.

$\bf^{12}$

According to Okello, JA, the crucial question to answer in the case was whether when the soldiers cut poles for making their huts or when the soldiers collected fire wood or burnt charcoal, those were acts which soldiers were employed to do or the manner of carrying out what they were employed to do or to carry out or whether they were ordered to carry out those acts. He then referred to the appellant's complaint to the local commander of NRA and the latter's reply that:

"The men were sent by order from above". He concluded strangely that this is not evidence that soldiers were ordered to carry out acts complained off and that there was insufficient evidence to establish vicarious liability. In my opinion this conclusion like that of the Principal Judge, is on the facts, erroneous.

It is common ground that soldiers camped next to the They therefore, had opportunity appellant's farm. for access to the farm. Appellant's unchallenged evidence that the soldiers trespassed on his land is supported by that of Edward Semucho. Further, Brigadier Nanyumba testified that soldiers were in the area and that the appellant complained about the damage caused to his farm by those soldiers. Therefore the Brigadier tasked the local commander who informed him that soldiers had damaged the appellant's crops. I think that this was an acknowledgement of trespass. The Brigadier stated

that the State sometimes may not be able to cater for the needs of the army. Therefore a local commander "may take initiative to secure provisions. So Mr. Lutaya's complaint is not unusual."

Normally this statement would not mean much. However in the context of the facts of this case it does. The learned Principle Judge held that in his evidence the Brigadier in this regard was helping his friend, the appellant. In my view and with all due respect, this finding is without proper foundation. The Brigadier was not cross-examined about the motive for testifying as he did. He was not asked whether he was helping a friend or was simply telling the truth The record does not show that his or falsehood. demeanour as a witness showed that he was not $\overline{a}$ credible witness. That. means that his evidence remained untainted and credible. This entitled the trial court to make such inferences as are reasonable within the context. In my opinion the $most$ reasonable inference on the evidence as a whole is that normally in the Uganda army when soldiers lack provision for their needs, they help themselves. They can do this, for instance, as happened in this case, by invading a nearby forest to cut tress and get firewood. The appellant testified that soldiers his forest so as to construct huts cut for the soldiers and family to live in while performing This forced the appellant to raise official duty. his complaint directly with a local commander of the

soldiers and who was in charge of the same soldiers. That commander was t.hen obliged Lo tell the appellant, in effect., that, what the soldiers were doing, €.g., cuEting timber, was authorised. from superj.ors, In t.he circumstances iE was not incumbent upon t.he appellant to embark on the exercise of establishing the t.ruth of that commander's statement. thaE his superiors ordered soldiers to do what they did. He was entitled to assume and believe that the soldiers had been authorised Eo construcE hut,s using materials from the appellant.'s forest. Aft.er a1I the soldiers were supposed t.o be housed by the state. Not enough houses appear Eo have been provided. The soldiers constructed the huts while on official d.uty so as to be confort,able. They were therefore, performing official functions in a crude way.

Both the learned erincipal . Iudge and the Court of Appeal appear to regard what t.he local commander told t.he appellant as hearsay. In this case that. can not. be hearsay. The soldiers had cut and continued to cut timber. Both the local commander and the appellant knew this as a facE. In that regard, the evidence of Kibuka Joseph (pW5) is important. He testi fied:

"Between 7995-96 I saw so. T,djers coming to visit us. They would gather firewood and timber for building. They ate matoke tomatoes, fene, etc. Accompanied LuEaya to reporC to chairman RCl Kiswera. He gave us

a l.etter to take to Lipoma SaEeJ,l,i te to report to the boss of the soJ,diers. fhere were many soJ,diers coming. Some were siEtingt others picking firewood, others mowing out and out. Their uniports were mote than 700. They continued despite our complaint. I know the environs of the farm. There js nowhere else they couTd have coJ. J.ected f irewood. ,'

This witness was noE challenged on this evidence which evidence showed Ehat soldiers t.respassed on the appellant's land and removed Eimber and crops therefrom. It is my view thaE if iE was a quest.ion of one soldier or Ewo soldiers doing the damage complained of by Ehe appellant once or twice or stealthily, it could accord with the opinions of both the learned Principal Judge and the Court of Appeal that the soldiers act.ed on their own f lori-c . BuL, where, as it is quit,e evident. in this case, that soldiers made it rout.ine to harvest t,imber and fruits from the appellant's farm for the purposes of enabling them to perform their funct.ions, it ceases to be a floric of the soldiers. The matter appears Eo have been so routine and so apparently official t.hat. Ehe appellant had to complain not only to RCs buE also to the Resident. District Commissioner and to the commanding officer and eventually to the Chiefof-St.aff of the army. The latter acknowledged the

damage which he impliedly atstributed to failure by the state Eo provi-de for soldiers.

The Ministry of defence deployed soldiers at Mpoma Satellite st.at.ion to perf orm stat.e security matters. The MinisEry of defence was bound Lo provide accommodation for and food to the soldiers. Failure to make Ehe provisions for t.he soldiers tempted t.he soldiers or their commanders to use init.iative for the soldiers to survive in order to be able to perform state duties. Surely it can noE lie in t.he mouth of the respondent to say that in those circumstances soldiers did what they did at their peril or t.hat they should have s1ept. in the open to face the vagaries of nature. I can not agree.

Wj.th greaE respect to both the learned principal Judge and the Court of Appeat, bouh failed Lo appreciate that the facts proved in this case established vicarious liability.

In my opinion, the acts of the soldiers were officialacts and they bound t.he respondent in terms of the vicarious liability principles enunciated in t.he Muwon e case. I therefore hold that both the learned Principal .fudge and the eourt of Appeal erred when each heLd that Ehere was no vicarious liability for the respondent. arising from the conduct of Ehe soldiers. I Lhi-nk that vicarious liability was proved and therefore ground one must succeed. Vicarious

liability was Ehe basis upon which the Court below decided the appeal . The conclusions on ground one disposes of this appeal.

This means the appeal must succeed. What is the consequence of this success?

In hj-s plaint,;

- (a) The appellant prayed for damages arising from trespass to Iand. - (b) Damages for loss of property and business investment valued at shs 255,800,00O/=. - (c) A permanent injunction restrainj-ng the defendant's soldiers from trespassing on the plaintiff's 1and. - (d) costs.

The learned PrincipalJudge held that the loss claimed was speculat.ive. He appears to have ignored prayers (a) and (c) and concentrated on prayer (b) . In his view:

"As I have stated jt caanot be said that onTy the so. T,diers of NRA/VPDF could have jnvaded the pl,aintiff,s farmTand and harwested crops, wood and tinber. For anyone therefore making a claim of the J,oss, there ,nust be apportionnent of the cause of the -l,oss. In particular it is now t,rite 7aw that specia.l damagres must not onTy be speciaTTy pJeaded but they must in addiEion, be specificaTTy proved. f confess I have not, found any proof, of damage attributed wholTy or even part.iaLTy to the NRA/UPDF so-Ldlers. The financjal l,oss adduced ## is based specu. T,ation " . on quantit,ative ar2d market

The appellant in this appeal pleaded special damages in his amended plaint. He adduced (exh. P.4) evidence to prove this. The learned PrincipalJudge said the evidence was ,,based on quantjtative and market speculation.'r I guess that, he means the loss was exaggerated. In the case of Kampala City Vs Nakaye 0972) E A 445 the respondent as plaint.iff claimed special damages arising from her damaged house and propert,ies. Trial court, accepted her oral evidence (receipts were losL) as to her loss and her c1aim. The amount. claimed was more than value of property Iost. On appeal in the E. A. Court of Appeal it was found that there was an error in t.he value of t.he properties lost. That Court (page A+g) correct.ed the amount. and upheld the award of special damages but reduced Ehe amount. In principle I see no dist.i.nction between the ctaim in these proceedings and the cLaim in Nakaye caae.

Because of the holding which I have just, guoted, the learned Principal Judge awarded no damages. He said nothing about the prayer for an j\_njunction. It is a well established judicial practice that in thi s t.ype of cases , a t,rial courE should indicate what it would have awarded as damages if t,he plaj-ntiff had established his claim: See National

Enterprises Corporation & 2 others Vs Nile Bank Ltd., Civil Appal No.17 of 1994 (unreported). If the learned Principal Judge had assessment the damages, I would have considered his estimate of the damages on the matter.

Evidence shows that the soldiers trespassed on the appellant's land. In that respect, he is entitled to some damages for trespass. Also he would be entitled to the grant of the prayer for a permanent injunction, if the soldiers are still trespassing on the land. I agree that damages for timber, charcoal and fruits may have been since there is evidence of exaggerated. But damage, and figures are given some amount should This Court is not in a position to be awarded. assess the damages now. This should be done by the trial court. Meantime I would grant a permanent injunction restraining the respondent's agents (soldiers) from trespassing on the appellant's land and harvesting timber, crops, and fruits therefrom.

For the foregoing reasons, I would allow the appeal and I would set aside the judgments and orders of the two courts below. I would remit the record to the trial judge to assess and award damages for:

- (a) trespass to land and - (b) Special damages.

I would award the appellant the costs in this Court and in the two courts below. The taxed costs will carry interest at the rate of 6% p.a. from date of judgment till payment in full.

Dated at Mengo this. 15 day of Mane 2004.

J. W. N. Tsekooko JUSTICE OF THE SUPREME COURT

Appelant Prescul

Mr. Samuyaba for A. Ms C. Laahver for Res.

In leant delivered in CT's un auler falcode

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA **AT MENGO**

## (CORAM ODOKI, CJ., ODER, TSEKOOKO, KAROKORA, AND **KANYEIHAMBA, JJSC)**

CIVIL APPEAL NO 10 OF 2002

#### **BETWEEN**

A. K. P. M. LUTAYA :::::::::::::::::::::::::::::::::::

#### AND

# ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

## {Appeal from the judgment of the Court of Appeal at Kampala (Kato, Okello, and Mpagi-Bahigeine JJA) dated 6th March 2002 in Civil Appeal No.49 of 2001}

#### JUDGMENT OF ODOKI, CJ.

I have had the advantage of reading in draft the judgment prepared by my learned brother Tsekooko JSC, and I agree with him that this appeal should be allowed with the orders he has proposed.

The main issue in this appeal is whether the Court of Appeal erred in holding that the Attorney General was not vicariously liable for the acts of the solders of National Resistance Army (NRA), which forms the first ground of appeal.

I agree that there was sufficient evidence to prove that the soldiers who plundered the appellant's farm and forest were acting within the course of their employment because the trees, timber ad firewood they removed from the appellants forests were used by them to facilitate the performance of their duties. The trees and grass they removed were used to build houses and huts for their

barracks and the firewood was used to cook the food they had secured from his land. These activities were part of the manner in which they were enabled to carry out their duties. lt was immaterial if the manner in which they carried out their duties was improper or unauthorized, so long as it was merely a manner of carrying out their dulies. Muwonqe v Attornev General (1967) E A.7

The soldiers' employer namely the Government benefited from the activities of soldiers since there was evidence from their supervisors that it was normal for soldiers to obtain these supplies for themselves when the Government failed to provide them. Therefore there was at least an implied authorization for the soldiers to help themselves on the appellants' property.

However, from the evidence of the officer in charge of the soldiers and Brigadier Nanyumba, who was the then Chief of Staff, it is clear that the authorities were aware of what was happening and did nothing to stop it. On the contrary, it was alleged that the soldiers were doing so because of the orders from above.

ln those circumstances, the Respondent was clearly vicariously liable for the actions of the soldiers which were committed in the course of their employment, and the Court of Appeal erred in holding otherwise.

ln view of the fact that the learned Principal Judge did not, as he should have done, assess the damages he would have awarded had he found for the appellant, I agree that the case be remitted back to the trial judge to assess general and special damages payable to the appellant. lalso agree that a permanent injunction be issued against the respondent to stop the soldiers from trespassing and plundering the appellant's land

As the other members of the court agree with the judgment and orders proposed by Tsekooko, JSC, this appeal rs allowed with the orders as proposed by the learned Justice of the Supreme Court.

$194$ day of March 2004. Dated at Mengo this ......

zuk B J ODOKI CHIEF JUSTICE

$\mathcal{L}^{\bullet}$

$\mathcal{L}^{\prime}$

## IN THE SUPREME COURT OF UGANDA **AT MENGO**

CORAM: ODOKI, CJ; ODER, TSEKOOKO, MULENGA AND KANYEIHAMBA, JJ. S. CJ

### CIVIL APPEAL NO. 10 OF 2002

### **BETWEEN**

| A. K. P. M. LUTAYA | | | |------------------|-----|--| | | AND | | | ATTORNEY GENERAL | | |

[Appeal from the judgment of the Court of Appeal at Kampala {Kato, Okello & Mpagi-Bahigeine, J. J. A} dated 6th March, 2002 in Civil Appeal No. 49 of 2001]

### JUDGMENT OF MULENGA JSC

I had advantage of reading in draft the judgment prepared by my learned brother Tsekooko JSC and I agree that the appeal be allowed. I also concur with the orders he proposed.

Dated at Mengo this 9 day of Morel 2004

J N Mulenga Justice of the Supreme Court

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT MENGO

#### MULENGA (CORAM: ODOKI, C,J., ODER, TSEKOOKO, KAROK KANYEIHAMBA, J. J. S. C.)

### CIVIL APPEAL NO. 10 OF 2002

## A. K. P. M. LUTAYA :::::::::::::::::::::::::::::::::::

### AND

# ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

[Appeal from the judgment of the Court of Appeal at Kampala (Kato, Okello and Mpagi-Bahigeine, J. J. A.) dated 6.3.2002 in Civil Appeal No. 1 of 20021

# **JUDGMENT OF KANYEIHAMBA, J. S. C.**

I have had the benefit of reading in draft the judgment of my learned brother, Tsekooko, J. S. C. I agree with him that the appeal should be allowed. I would set aside the judgments and orders of the Court of Appeal and of the High Court for assessment of general damages for trespass and special damages.

I would remit the case to the High Court for assessment of damages.

I also agree with the proposals and orders made by Tsekooko, J. S. C.

Dated at Mengo this $19^{\circ}$ day of Mowch 2004.

## G. W. KANYEIHAMBA JUSTICE OF THE SUPREME COURT