Lutaya v Attorney General (Civil Appeal No. 49 of 2001) [2002] UGCA 13 (6 March 2002)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON. MR. JUSTICE C. M. KATO, JA HON. MR. JUSTICE G. M. OKELLO, JA HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA

CIVIL APPEAL NO. 49 OF 2001

#### **BETWEEN**

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

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### AND

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

$20$

#### (Appeal from the decision of the High Court Kampala (Ntabgoba, PJ) dated 21st June, 2000 in HCCS No. $301/96$

#### JUDGMENT OF G. M. OKELLO, JA

The appellant. A. K. P. M. Lutava, had on $21 - 06 - 2000$ lost a legal $\overline{25}$ battle in the High Court against the respondent and has now appealed to this Court.

The background facts which led to this appeal may in summary be stated that the appellant was at all material times and still is the $30$ registered proprietor of a piece of land comprised in Leasehold Register Volume 1+25. Folio 13. Block 97. Plot 1 situate at Kyaggwe in the present Mukono District. He sued the respondent in the High Court at Kampala for general and special damages for trespass

trespass to his said land. He alleged that about 600 soldiers of the National Resistance Army (NRA) now Uganda Peoples' Defence Force (UPDF) who were deployed at Mpoma Satellite Station had in February 1995 trespassed on to his said land and caused substantial damage to the firm and the forest cover. They cut down and removed all available timber in his exclusive and demarcated forest for construction of their shelters, for firewood and in charcoal burning. The Principal Judge who heard the case found that the respondent was not vicariously liable for the alleged acts of trespass by the soldiers. He accordingly dismissed the suit. It is against that dismissal that this appeal was brought.

The memorandum of appeal comprised six grounds couched as follows:-

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The learned Principal Judge failed to adequately $(1)$ evaluate the evidence on record and hence erred in holding that the Appellant did not have an exclusive and demarcated forest.

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$(2)$ Having found that there was a continuous trespass on the Appellant's land from 1973 which was not attributable only to the NRA/UPDF soldiers, the learned Principal Judge erred in law in finding that there was no trespass on the Appellant's land by the Respondent.

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- The learned Principal Judge erred in law and fact in $(3)$ his interpretation of the law on Hearsay Evidence by erroneously finding that the Army Commander's statement to the Plaintiff, and the Local Commander's statement to the Army Commander were hearsay. - The learned Principal Judge misdirected himself $(4)$ on the law of vicarious liability and erred in law in finding that the Respondent is not vicariously liable for the acts of the NRA Soldiers. - $(5)$ The learned Principal Judge erred in holding that the damages claimed by the Appellant were special damages and hence set a higher stand (sic) of proof which constituted an error in principle. - The learned Principal Judge failed to properly $(6)$ evaluate the evidence on record and therefore failed $20$ to award the Appellant Damages.

Upon the above grounds the appellant proceeded to pray this court as follows:-

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to allow the appeal; $(a)$

- to reevaluate the evidence on record and find $(b)$ the respondent vicariously liable for the acts of the NRA soldiers: - $(c)$ award the appellant damages to be assessed by the court; - $(d)$ order a permanent injunction restraining the respondent from trespassing on to the appellant's said land; and

#### $(e)$ order the respondent to pay costs of this appeal in this Court and in the High Court.

When this appeal was called for hearing, the appellant and his $15$ counsel appeared but there was no representative $\quad\text{of}\quad$ the respondent. However, there was evidence of service showing that the Hearing Notice for that day was served on Mr. Denis Birieje. Commissioner for Litigation, who accepted it. No reason was communicated to this court from the Attorney General's Chambers $20$ for the failure or inability to attend the hearing. So, when counsel for the appellant applied to proceed exparts under rule 99 (3) of the Rules of this Court. we granted his request. This judgment is. therefore, based on the consideration of the record of the $25$ proceedings of the High court, the submission by counsel for the

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appellant and the relevant laws without the benefit of any **contribution** from the respondent.

Mr. Nangwala. learned counsel for the appellant. argued grounds $1-4$ separately but grounds 5 and 6 together.

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I shall start with ground $\rightarrow$ because it is the fulcrum of the whole The complaint in this ground is against the learned appeal. Principal Judge's application of the principle of vicarious liability of the master for his servant's acts. Mr. Nangwala submitted that $10$ though the learned trial judge correctly stated the principle of the law of vicarious liability as pronounced in Muwonge vs Attorney General of Uganda (1967) EA 17. he wrongly applied it to the facts of the instant case. He pointed out that as there was evidence $15$ showing that the soldiers needed shelter and firewood, the reasonable inference to be drawn was that their trespass on to the appellant's land in search for poles to make themselves shelter and to collect firewood was authorised. Their Commander acquiesced in He contended that the trial judge erred in his their acts. application of the principle and thereby found that the respondent $20$ was not vicariously liable for the acts of the soldiers.

The law regarding vicarious liability of a master for the acts of his servant was stated in Muwonge vs Attorney General of Uganda (1967) EA 17 at 18 by Sir Charles Newbold. President of the then East African Court of Appeal as follows:-

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"An act may be done in the course of a servant's employment so as to make his master liable even though it is done contrary to the orders of the master, and even if the servant is acting deliberately, wantonly, negligently or criminally, or for his own benefit, nevertheless if what he did is merely a manner of carrying out what he was employed to carry out then his master is liable"

The trial judge dealt with this issue in his judgment thus. $10$

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"To meet the contention of counsel to base my decision on the above quoted words of Sir Charles Newbold in **Muwonge vs Attorney General (supra)** would be stretching the doctrine of vicarious liability of a master for his servant's criminal act to even cases where a servant is directed to pick a harvest from the master's well explained farm and the servant, wanting to steal, strays deliberately and intentionally to a third party's farmland and steals therefrom. That would be stretching Sir Charles Newbold's quoted words to absurdity. The soldiers were stationed at the Mpoma Satellite station not on the plaintiff's Farmland. In the evidence on record it is stated that some unipots were installed. Apart from the hearsay evidence, there is no evidence showing that they had instruction to invade the farmland nearby, collect firewood, food and fruits and burn charcoal.

In any case, I have not found as a fact that they carried out those acts and even if I had so found, I would not have found that they were carrying out their orders or that what they did was a method of carrying out the orders.

In the result, I would answer the 4th issue in the negative and hold that the Attorney General was not vicariously liable".

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The learned trial 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 (supra)**. In my view, the principle as stated in Muwonge's case (supra) is fairly clear. Once the acts were done by the servant in the course of his $20$ 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. $25$

In m1' .ludgment the crucial question to ans\\-er here is s-hether cutting poles br the soldiers for making themselr-es huts or collectrng fires'ood or burning charcoal are acts u.hrch the soldiers s'ere emploled to do: or the manner of carn-ing out s'hat thet s'ere emploled to carn out: or ther s'ere ordered to carn out those acts. I have revies'ed the evidence on record as it is ml dutr so to do to satisft' m1'self s-hether rhe decision of the trial judge could be supponed. On the record. there is the evidence of the appellant that he complained ro rhe Local Commander about his soldrers acts of trespass on to the appellant's land. The commander retorted that the soldiers u'anted shelter and that 'the mea were sent by orders from above The appellanr further resrified that he later addressed hts complatnr ro B.rg Sam \anvurnba (PW6). Nanr-umba. the former.{rm.r Chref of Staff bet.n'een (1989 - 1996). confirmed that the appellant complained to him about the soldiers' acts of trespass on to his land. According to \anvumba. on receipt of that complaint. he tasked the relevant Unit Commander but drd not remember the response of the Unit Commander. lr, li

Clearh. the above evidence does nor shos that the acts complained of s'ere the manner of carn lng out s'hat the soldiers s.ere emploved to carn' out: nor that the soldrers \$'ere ordered to carn out those acts. The response of the Local (Unrt) Commander to rhe appellant that 'the tnen Eere sent by orders from above, is not proof that such an order s-as made. It rs mereh er.idence that such a response u-as made. The response did not stare q.ho made the

order from above. There is, therefore, no evidence of any order that the soldiers carry out the acts complained of. Nanyumba himself did not testify that the soldiers were ordered to carry out those acts. He merely stated that the type of complaint5 made by the appellant were not unusual. That only proves that the appellant made the complaint.

Mr. Nangwala submitted that as there was evidence that the soldiers needed shelter and firewood. a reasonable inference was that the soldiers' trespass on to the appellant's land was authorised $\left| \cdot \right|$ since their commander acquiesced in the acts. With respect. I am unable to accept that submission. There is no cogent evidence that the soldiers needed shelter. The appellant's evidence of the Unit Commander's response to him is merely evidence that such a response was made. It is not proof of the truth of the response. To $15$ that extent, it is hearsay. Therefore, there is no evidence to prove that the acts complained of were committed by the soldiers in the course of their employment within the principle stated in Muwonge vs Attorney General (supra). The learned trial judge was thus right to find that the respondent was not vicariously liable for those acts. $20$ This ground would therefore, fail.

In view of that finding. I deemed it not necessary to consider the rest of the grounds as none would have any adverse impact on this decision.

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In the result. I would dismiss the appeal. As the respondent did not appear at the hearing of the appeal. I would make no order as to costs.

Dated at Kampala this $6^{1/4}$ day of $10^{-1}$ cm2 2002. $\tilde{\textbf{S}}$ G. M. Okello

JUSTICE OF APPEAL.

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### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **AT KAMPALA**

## CORAM: HON. JUSTICE C. M. KATO, JA. HON. JUSTICE G. M. OKELLO, JA. HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA.

### CIVIL APPEAL NO. 49 OF 2001

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

#### **VERSUS**

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

(Appeal from the decision of the High Kampala (Ntabgove, PJ) dated 21st June, 2000 in HCCS No. $301/96$ )

#### **JUDGMENT OF C. M. KATO**

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I have read the draft judgment of my lord Okello, JA. I entirely agree with it. The crux of the matter in this appeal was vicarious liability of the respondent. The learned trial judge, in my view, considered the issue and correctly found that the respondent was not vicariously liable for the acts of the soldiers who seem to have been on frolic of their own.

As Bahigeine, JA. also agrees this appeal is dismissed with no order as to costs. as to costs. Dated at Kampala this ....................................

> C. M. KAT **JUSTICE OF APPEAL**

### THE REPUBLIC OF UGANDA

### IN THE COURT OFAPPEAL OF UGANDA

#### **AT KAMPALA**

#### CORAM: HON. MR. JUSTICE C. M. KATO, JA. HON. MR. JUSTICE G. M. OKELLO, J. A. HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, J. A.

#### CIVIL APPEAL NO.49 OF 2001

#### **BETWEEN**

A. K. P. M. LUTAYA ::::::::::::::::::::::::::::::::::: **APPELLANT** AND

**THE ATTORNEY GENERAL ::::::::::::::::::::::::::::::::: RESPONDENT**

> (Appeal from the decision of the High Court Kampala (Ntabgoba, PJ) dated 21st June, 2000 in HCCS No.301/96)

### **JUDGMENT OF A. E. N. MPAGI-BAHIGEINE, JA.**

I have read in draft the judgment of Okello, J. A. I agree with him that the appeal should be dismissed and have nothing useful to add.

Dated at Kampala this ....................................

A. E. N. MPAGI-BAHIGEINE **JUSTICE OF APPEAL**