Ngabirano v Attorney General & Another (Civil Suit 44 of 2022) [2024] UGHC 326 (23 January 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

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# IN THE HIGH COURT OF UGANDA HOLDEN AT RUKUNGIRI

## **CIVIL SUIT NO.0044 OF 2022**

## (FORMERLY KABALE HIGH COURT CASE NO.0016 OF 2020)

# (FORMERLY HIGH COURT CIVIL DIVISON CASE NO.305 OF 2019)

EARNEST KATARA NGABIRANO::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- $1.$ **ATTORNEY GENERAL** - BYAMUGISHA JOSEPH:::::::::::::::::::::::::::::::::::: $3.$

## BEFORE: HON. JUSTICE TOM CHEMUTAI, JUDGE. JUDGMENT

The Plaintiff filed this suit against the Defendants seeking general and punitive damages for Malicious Prosecution of the Plaintiff and also prayed for interest and costs thereto.

### Background

The plaintiff claimed that in 2011, the 2nd Defendant opened a criminal file at Kilimbe Police Post in Rukungiri District and falsely accused him of theft of his own Pine trees, vide SD REF 05/13/6/2011. That on 22nd April, 2014, again at the behest of the $2^{nd}$ Defendant, the Plaintiff was arrested by Police from Jinja Road Police station in the company of the 2nd Defendant and whisked to Kabale Central Police Station on allegations and accusations by the 2nd Defendant of theft of trees by the Plaintiff. That in 2016, the 2nd Defendant

opened another case at Jinja Road Police station in Kampala, vide SD/84/05/2016, of Obtaining Money by false pretenses by the Plaintiff and it was closed for lack of jurisdiction by Jinja Road Police Station. He further contended that the Plaintiff filed a Civil Suit No.93 of 2014, against the 2nd Defendant in 2014 in Mengo Chief Magistrate's Court and got judgment in his favor over the same facts. That in 2017, the Plaintiff was charged in the Chief Magistrate's Court at Kanungu vide KNG 00-CO-184/2017 with the offence of obtaining Shs. 28,000,000/= from the $2^{nd}$ Defendant by false pretences, however, he was tried and acquitted on 13th January, 2017. The Plaintiff contended that the matter was purely of a civil nature.

The $2^{nd}$ Defendant in his written statement of defence denied the Plaintiff's allegations and contended that the charges preferred by the Directorate of Public Prosecutions (DPP) of theft and Obtaining Money by false pretense were genuine and not preferred with malice to constitute an actionable tort of Malicious Prosecution. He stated that in 2010, the Plaintiff offered to sell his land to him which had Pine trees situated at Nyabizuru Cell, Rutenga Sub-County, Kanungu District at an agreed sum of Ugx 30,000,000/= (Thirty Million Shillings). That the $2^{nd}$ Defendant was to pay it in installments till the whole amount was paid. That the 2nd Defendant made some payments and the plaintiff issued to him receipts as acknowledgments of the sum paid. That the $2^{nd}$ Defendant deposited Ugx 7,500,000/= (Seven Million Five Hundred Thousand Shillings) on the plaintiff's personal account held in Centenary Bank as part payment of the agreed consideration and that reconciliation between the parties could be made thereafter. That after full payment of the abovementioned consideration, the plaintiff handed over vacant possession of the

land and the Pine trees thereon to $2^{nd}$ Defendant in the presence of the area L. C.1 Chairperson. That the 2nd Defendant assumed possession and hired people to prune the trees, an exercise which cost him a lot of money. That in 2011, the Plaintiff through the wife purportedly filed a Civil Suit No. 0097 of 2011 against the $2nd$ Defendant for trespass on land seeking a declaration inter alia, that the suit land was family land. That Plaintiff subsequently went ahead and forcefully harvested the trees on the suit land thus prompting the $2^{\mbox{\tiny nd}}$ Defendant to report a case at the Kilembe Police post of theft and Obtaining Money by false pretense. The $2^{nd}$ Defendant contended that there was probable cause for prosecution and the charges preferred against the Plaintiff were not actuated by malice but with true facts which prevailed at the time.

#### Representation

During the hearing of this matter, the Plaintiff was represented by Counsel Tumwesigye Lawrence from M/s Lawrence Tumwesigye together with Counsel Erasmus Nabimanya from Nabimanya & Co. Advocates. The 2nd Defendant was represented by counsel Agaba Jackson from M/s Ashimbisibwe & Agaba Co. Advocates.

The following issues were framed at trial;

- 1. Whether the Plaintiff was wrongfully arrested and maliciously prosecuted. - 2. What are the available remedies to the parties?

Plaintiff's submissions

Counsel cited the case of Olango Steven vs. Attorney General & KCCA HCCS No. 681 of 2016 and contended that the essential ingredients to prove malicious prosecution are as follows:

- 1. The criminal proceedings must have been instituted by the Defendant - 2. The Defendant must have acted without reasonable or probable cause. - 3. The Defendant must have acted maliciously. - 4. The criminal proceedings must have been terminated in the Plaintiffs favor.

He submitted that the two (first and last) ingredients had been proved by the Plaintiff, namely that the 2nd Defendant instituted Criminal Proceedings (vide KNG-00-CR-CO)-184/2017 (Uganda vs. Ngabirano Ernest Katara) against the Plaintiff. That the said criminal proceedings were terminated in the Plaintiff's favor.

Counsel submitted that the Resident Senior State Attorney of Kabale and the Regional Principal State Attorney perused the case file and advised that the matter was a land dispute and it was civil in nature and decided to close the file.

That the 2nd Defendant was not satisfied with his decision thereafter he complained to the DPP headquarters and the file was called for. The authorities at the DPP's headquarters upheld the witness' decision to close the file.

That the 2nd Respondent complained to Okello Richard, a Principal State Attorney at DPP headquarters. The said Okello Richard wrote a letter to the

Director of CID and directed the CID to change the charge from the offence of theft to Obtaining Money by false pretence. That the information that came to the Prosecutor or discovered by it through investigations previously conducted, and the legal advice rendered by State Attorneys, pointed to the innocence of the Plaintiff and that no prudent and cautious man relying on such information would believe that the Plaintiff was guilty of that offence. That the two State Attorneys at both the District and Regional levels had advised that the matter was purely civil because it was a land dispute that was already in a civil court. That the trial Magistrate who acquitted the Plaintiff commented on the civil suit that was pending in respect of the matter saying that unless the ownership of the land is determined by the civil court, the court would not safely convict the accused person.

That the 2nd Defendant initiated the legal process for purposes of retaliation and enmity, personal spite against the Plaintiff and not to achieve justice. He added that the Magistrate in the Criminal Court pointed out in his Ruling that the State was only criminalizing a land matter which is an abuse of legal process.

Counsel contended another evidence of malice against the Plaintiff by the 2nd Defendant would be gathered from Exhibit P14 which is an article published in the Monitor Newspaper on 3rd August 2017.

On remedies, Counsel submitted that the Defendants caused enormous damage to the Plaintiff's reputation and proposed that the Plaintiff be awarded with UGX. 500,000,000/ $=$ as general damages. He also prayed that Defendants be held liable to pay punitive damages of UGX. $150,000,000/=$ .

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He further prayed for interest on both general damages and punitive damages at a rate of 20% per annum from the date of filing the suit till payment in full and awarded costs of the suit.

## Respondent's submissions

Counsel for the Respondent submitted that the Plaintiff's arrest and subsequent prosecution were not wrongful at all. He contended that it was the fundamental obligation of the State to prosecute criminals and protect the Public from the attendant harm that may result from criminal activity. He submitted that DW1, Byamugisha Joseph, testified that in the year 2010, the Plaintiff sold to him land developed with Pine trees situated at Nyabizuru, Rutenga Sub-county, Kanungu District at shs 30,000,000/=. That the amount was supposed to be paid in installments, which the $2^{nd}$ Defendant duly complied with and the sale and purchase agreement was dully executed whereupon the Plaintiff introduced the 2nd Defendant as the new owner of the said land and Pine trees and handed over to him vacant possession thereof.

He submitted that it was the $2^{nd}$ Defendant's duty to report to the Police about the criminal conduct of the Plaintiff and provide police with relevant information and evidence to sustain the charge which did. That the 2nd Defendant never acted with any malice towards the prosecution of the plaintiff. That the 2nd Defendant never caused any press conference towards the arrest and prosecution of the Plaintiff. That the Plaintiff has never sued the 2nd Defendant for any defamation case or at all. Counsel prayed that the suit be dismissed with costs to the 2nd Defendant under section 27 of the Civil Procedure Act.

## Plaintiff's submissions in rejoinder

Counsel submitted that the subject matter of the case was a land dispute where the 2nd Defendant alleged to have bought land from the plaintiff but the Plaintiff denied the contract of sale. That such dispute would be resolved by a civil court and not the criminal one, the matter before the civil court vide Civil Suit No. 090 of 2021 is pending before the Chief Magistrate.

Counsel reiterated his earlier submissions and rejoined that the prosecution of the Plaintiff by the 1st Defendant's agent was malicious and wrongful and that the 2nd Defendant aided the said prosecution as a complainant with the aim of maligning the good name of the Plaintiff.

## Courts' Determination

In this suit, the plaintiff claims that he was maliciously prosecuted by the $1^{\mbox{\tiny st}}$ Defendant under orders or false allegations of the 2nd Defendant. That the Plaintiff had obtained money worth $28,000,000/$ = by false pretence. The Plaintiff was charged under section 305 of the Penal Code Act, however, the plaintiff was acquitted.

In the case of Erieza Kaggwa Vs Christine Kagoya and Attorney General, Civil Suit No. 397 of 2014, the Court held;

"The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. It occurs as a result of the abuse of the minds of judicial authorities whose responsibility is to administer criminal justice."

In the case of Olango Steven vs. Attorney General & KCCA(supra) cited by counsel for the Plaintiff, the court relied on Odunga's Digest on Civil Case Law and Procedure page 5276, which outlined the essential ingredients which must be proved for the case of malicious prosecution to succeed, as follows:

- $1.$ The criminal proceedings must have been instituted by the Defendant - $2.$ The Defendant must have acted without reasonable or probable cause. - The Defendant must have acted maliciously. $3.$ - The criminal proceedings must have been terminated in the Plaintiffs $4.$ favor.

The Court further noted the above that:

However, mere acquittal in the plaintiff's favour does not mean that he or she has been maliciously prosecuted. He/she must prove other conditions of malicious prosecution. In addition, merely because the plaintiff came to be acquitted or discharged in a criminal court as the prosecution failed to prove the case beyond reasonable doubt, it does not mean that such acquittal or discharge could necessarily boomerang upon the defendant as a case for malicious prosecution. Underlining for my emphasis.

It is clear from the about that not all acquittals or discharges in Criminal matters will be potential civil suits for malicious prosecution. The Plaintiff must prove by credible evidence that the Defendant/s acted without

reasonable or probable cause and with malice when they instituted the criminal proceeding against the Plaintiff. Malicious conduct has been defined in various case and in cases. In the case of Erieza Kaggwa Vs Christine Kagoya and Attorney General (ssupra) citing the case of Gwagilo V Attorney General [2002] 2 EA 381 (CAT), the Court stated that, I quote;

"Malice in the context of malicious prosecution is an intent to use the legal process for some other purpose than its legally appointed and appropriate purpose and the appellant could prove malice by showing for instance that the prosecution did not honestly believe in the case which they were making that there was no evidence at all upon which a reasonable tribunal could convict that the prosecution was mounted on a wrong motive and show that motive."

In the case of Kindi Eria Zizinga Albert vs Makerere University Kampala (1977) HCB 180, Court stated that;

"In any event, where prosecution is instituted by the Police or other investigative or prosecutorial agency after investigations, the person giving information is not liable for malicious prosecution unless the information was given with malice."

There is no doubt the Plaintiff was prosecuted for the offence of obtaining money by false pretence and accordingly acquitted after the Court found that the case was civil in nature. What is now to be determined is whether the 2nd Defendant gave false information to lead the malicious prosecution of the Plaintiff

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The 2nd Defendant averred that the plaintiff sold to him land developed with Pine trees situated at Nyabizuru, Rutenga Sub county Kanungu District at shs 30,000,000/=, which he claimed to have paid and was handed over vacant possession. He contended that Plaintiff, through his wife, instituted a civil suit at the Chief Magistrate's Court at Kanungu against him for trespass on the said land and that they claimed that it was family land. The $2^{\mbox{\tiny nd}}$ Defendant exhibited receipts, acknowledgments, and Bank deposit slips of 7,500,000/= which he claimed to be part payment of the suit land. The Plaintiff contended that the said Bank deposit slips were repayment of the monies, the $2^{\tiny{\text{nd}}}$ Defendant had lent to him.

The issues of whether the $2nd$ Defendant purchased the land with Pine trees from the Plaintiff and the validity of the entire transaction was subject to litigation before the Chief Magistrate's Court of Rukungiri in Civil Suit No.0097 of 2011 and the trial Chief Magistrate held that the Plaintiff received 30,000,000/= from the $2^{nd}$ Defendant in the name of selling to him the suit land and the said land sale transaction was invalidated for lack of requisite spousal consent from the Plaintiff's wife (Natukunda Annet Ahabwe).

The finding of the trial Chief Magistrate that the 2nd Defendant paid 30,000,000/= to the Plaintiff for the purchase of the suit land which transaction was declared a nullity by the trial Chief Magistrate's Court, points to the fact that there was an engagement between the Plaintiff and the 2nd Defendant which resulted into an illegal transaction and hence there was no malice when Criminal proceedings were instituted against the Plaintiff. The plaintiff received 30,000,000/= (Thirty million) as the purchase price for the suit land from the 2nd Defendant, knowing the suit land was jointly owned

between him and his wife. It was the right and duty of the 2nd Defendant to make a complaint to the Police, having been deprived of his money by the Plaintiff in a dubious transaction. It was the duty of the State to prosecute the Plaintiff.

I wish to comment on the Ruling of the trial Magistrate in criminal case No. 180 of 2017 between Uganda and Ngabirano Ernest Katara. The trial Magistrate, in that case, dismissed the case on the ground that there was no evidence to prove the essential ingredients of the offence of obtaining money by false pretence. The particulars of the offence were that the accused person (Ngabirano Ernest Katara) during the month of May to July, 2010 at Rutenga in the Kanungu District with intent to defraud, obtained cash worth 28,000,000 (Twenty-Eight Million Uganda Shillings only) from Byamugisha Joseph by falsely pretending that he was selling to him Land with Pine trees whereas not. The prosecution called three witnesses namely David Bitambeki, (PW1) Tukamushaba Alex (PW2), and No. 2713 Sgt. Turinawe Justus (PW3) and the Prosecution closed its case. That was very absurd because the complainant, who was the 2nd Defendant, was never called to give evidence in Court yet he was the owner of the money that was the subject of dispute. The trial Magistrate should have taken an extra step to ascertain the whereabouts of the major complainant (2nd Defendant). However, he did not and the case was bound to collapse due to poor management and prosecution.

Counsel for the Plaintiff heavily relied on the case of Olango Steven vs. Attorney General & KCCA(supra), which I find to have different facts compared to the current one. In that case, the $2^{nd}$ Defendant's workers

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(KCCA Enforcement Officers) entered the Plaintiff's home/compound while chasing vendors and they turned against the Plaintiff because he was asking them for their identity cards. They opted to arrest the Plaintiff and preferred trumped-up charges of disorderly behavior contrary to Rule 7(g) and 27 of the Local Governments (Kampala City Council) Maintenance of Law and Order Ordinance 2006, which were dismissed by the Court. In the current case, there were no trumped-up charges brought against the Plaintiff. As I have indicated in this judgment, the Defendants had cause to institute criminal proceedings against Plaintiff after the dubious land sale transaction between Plaintiff and 2nd Defendant.

Therefore, in conclusion, it's my finding that the Defendants did not maliciously prosecute the Plaintiff. Hence I find no merit in the Plaintiffs' case and the same is hereby dismissed with costs to the 2nd Defendant.

Since the 1st Defendant did not show in Court, there are no costs awarded to it.

..... day of... Delivered at Rukungiri this

**TOM CHEMUTAI** JUDGE