No. 46516 PC Ababa v Attorney General (Civil Suit 10 of 2016) [2024] UGHC 925 (20 September 2024)

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MASINDI

### CIVIL SUIT NO. 010 OF 2016

## NO.46516 P. C ABABA MICHEAL ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

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

Before: Hon. Justice Byaruhanga Jesse Rugyema

## JUDGMENT

- The Plaintiff sued the Defendant for inter alia, unlawful imprisonment and $[1]$ or detention and torture arising from the tortious acts of the officers of the defendant. The plaintiff therefore sought for general damages, exemplary damages and costs of the suit. - It is the plaintiff's case that on $27^{\text{th}}/9/2015$ , at Latodore village in Kitgum $[2]$ District, he was violently handled by the arresting police officers who slapped him and indiscriminately beat him up with batons, bundled him up on the police vehicle and eventually drove him to Central Police Station Kampala (CPS) where he was detained for a week without being produced in court for trial. Later on $2^{nd}/10/2015$ , the plaintiff was transferred to Masindi where he was charged before the Magistrate's court with the offence of attempted murder. He denied the offence and was remanded till $26^{th}/2/2016$ when he applied for bail which was granted by the Magistrate's court. That upon leaving court premises to enjoy his bail, the plaintiff was immediately re-arrested by police officers attached to Masindi Police Station who detained him in police cells from 26<sup>th</sup>/2/2016 to $23<sup>rd</sup>/3/2016$ without any charge and/or having him produced before court for trial.

- The Plaintiff avers and contends that he was unlawfully arrested, falsely $[3]$ imprisoned, tortured, abused and incessantly threatened with death by Uganda Police officers of Masindi. That in the police cells of Masindi, he was subjected to torture, cruel, inhuman and degrading treatment for which he holds the defendant vicariously liable. That the defendant is vicariously liable for the high handed and unlawful actions of the defendant officials. - The defendant on the other hand denied the plaintiff's claims and averred $[4]$ in the Written Statement of Defence (WSD), that the plaintiff was lawfully arrested and detained by police on reasonable cause and information as per its mandate under the 1995 Constitution of the Republic of Uganda. That the actions and conduct of the defendant's agents were not in any way unlawful or ill willed and therefore do not attract liability on part of the defendant. - The office of the Attorney General (the defendant) was duly served with $|5|$ the hearing notices in this case and when the matter came up for hearing, neither the defendant's counsel nor its representative appeared in court on the due date. As a result, the hearing of the suit proceeded *ex parte*.

# **Issues for determination**

1. Whether the plaintiff was unlawfully arrested and detained by police.

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- 2. What remedies are available to the parties. - **Counsel legal representation** - The plaintiff was represented by Mr. Simon Kasangaki of M/s Kasangaki $[6]$ & Co. Advocates, Masindi while the defendant was represented by Ms. Charity Nabaasa from the Attorney General's chambers, Kampala.

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# **Resolution of issues**

Issue No.1: Whether the plaintiff was unlawfully arrested and detained by police.

- Counsel for the Plaintiff submitted that the Plaintiff, No.46516 P. C Ababa $[7]$ Micheal adduced evidence in person as (PW1) and testified that he was violently arrested and detained by 11 police officers of the Government of Uganda without an arrest warrant. That the police officers who were acting within the scope of their employment, exceeded their mandate by rearresting and detaining the plaintiff after the court, Masindi Chief Magistrate's Court had released him on bail. Counsel further submitted that there is evidence on record to show that the plaintiff was kept in custody for more than the 48 hours limit prescribed by law, subjected to poor diet, assaulted and tortured which actions amount to wrongful arrest and imprisonment. He concluded by inviting court to believe the plaintiff's evidence as truth and prayed for damages for loss and psychological torture that was subjected the plaintiff. Counsel relied on the authorities of John Ogil Vs A. G, HCCS No.94 of 2004 (Gulu) and Muwonge Vs Attorney General [1967] E. A 17 to support his submission that the defendant is vicariously liable for the acts [unlawful arrest and false imprisonment of the plaintiff] of its agents, the Uganda Police Force. - Upon perusal of the parties' pleadings and the plaintiff's (PW1) evidence $[8]$ on record, I find that it is not in dispute that the plaintiff was arrested and detained by police. The Defendant in the WSD contended that the actions of the police officers who are agents of Government were in execution of their constitutional mandate and therefore attract no liability on the defendant's part. - In the instant case the Plaintiff (PW1) adduced evidence in his Witness $[9]$ statement that he was arrested without an arrest warrant on 27th/9/2015. and that he was detained by the Uganda Police Force for 4 days until $2<sup>nd</sup>/10/2015$ he was transferred to Masindi Chief Magistrate's Court where he was remanded on charges of attempted murder until the 26<sup>th</sup>/2/2016 when he was released on bail. However, upon his release on bail, the plaintiff was re-arrested and detained in police from 26<sup>th</sup>/2/2016 to

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$23<sup>rd</sup>/3/2016$ when he was eventually released. It is apparent that the plaintiff's complaint is in regard of the unlawful arrest upon release on bail and the subsequent illegal detention at Masindi Police from $26<sup>th</sup>/2/2016$ to $23<sup>rd</sup>/3/2016$ (a period of 27 days). Indeed, the plaintiff's arrest and detention at Masindi Police under the foregoing circumstances was unlawful. There are no reasonable grounds advanced by the defendant justifying the re-arrest and detention of the plaintiff when he had been granted bail.

- [10] In the circumstances above, I find that the detention of the plaintiff beyond the period of 48 hours and the refusal to release him on police bond was I contravention of the plaintiff's right to liberty under Article 23(4) (b) of the 1995 Constitution, Section 25(1) of the Police Act and Section 17(3) of the Criminal Procedure Code Act. - [11] As regards the allegations of torture, cruel, inhuman and degrading treatment, the Plaintiff (PW1) testified in paragraphs 10 & 11 of his Witness statement, thus: - "10. I was kept in filthy cells which were over crowded, without ventilation, denied beddings, slept on a wet floor, in a dark confinement without ventilation or aeration, was bullied by inmates, fed on badly cooked beans and maize posho meal once a day. - 11. I was seriously assaulted by police officers, was violently tortured, denied bond, ridiculed, made to clean dirty police cells and abused by police officers who incessantly threatened me with death."

[12] Torture is defined under Section 2 of the Prevention and Prohibition of Torture Act, 2012 as:

"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 acquiescence of any person whether a public official or other person acting in an official or private capacity for such purposes as -

a) obtaining information or a confession from the person

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or any other person;

- 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; or - c) intimidating or coercing the person or any other person to do, or refrain from doing, any act."

Under Section 4 of the Act, torture is criminalised, it is a very serious offence which has been considered so barbaric and incompatible with civilised society and therefore, it cannot be tolerated, see Issa Wazembe Vs A. G, HCCS No.154 of 2016. Freedom from torture is one of the most universally recognised human rights and its ban is found in a number of international treaties, including Article 2 of the UN Convention Against Torture and Article 5 of the African Charter on human and peoples' **Rights** of which Uganda is a signatory. Therefore, for one to succeed in his or her allegations of torture there must be cogent and credible evidence adduced and the standard of proof has to be above that of the balance of probabilities.

[13] In the instant case, the plaintiff PW1, claim to had been tortured or subjected to inhuman and degrading treatment. The Plaintiff however, adduced no evidence to support his claims of torture. The plaintiff ought to have adduced evidence for example, in form of a medical examination report of his body or pictures/photos displaying scars if any on his body or any other evidence for this court to appreciate his claims. In the absence of any such evidence, court is inclined to reject the plaintiff's claims of torture and cruel, inhuman or degrading treatment or punishment.

[14] In the premises, I only find that the plaintiff was on the $26^{\circ}$ day of February 2016 unlawfully re-arrested and detained by police, the agents of the defendant of which he is entitled to damages.

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## **Remedies**

### **General damages**

[15] It is trite that general damages are awarded at the discretion of court and are intended to place the plaintiff in the position he would have been had the wrong complained of not occurred, Blackburn M. Livingstone Vs Rawyards Coal Co, [1880] 5 AC 2539. It is apparent that during the plaintiff's unlawful arrest and detention which was for a period of 27 days, he was inconvenienced and subjected to mental anguish, pain and suffering. He was also denied the opportunity to enjoy the benefits of the court bail he had secured from the courts of law. He was at the same time denied a police bond while in the illegal detention. In the premises, I award the plaintiff $Ugx$ 8,000,000/= as general damages for unlawful arrest and detention.

### **Exemplary damages**

[16] These are intended to punish and also deter the future commission of similar acts by the agents of the defendant. In Apire Michael Vs A. G, HCCS No.92 of 2004 at Gulu;

"Exemplary damages are not meant to enrich the plaintiff. They are punitive in nature as a deterrent to future acts of the defendant."

The plaintiff prayed for Ugx 50,000,000/= a figure that I find rather high and excess. The plaintiff is accordingly awarded Ugx 2,000,000/= as exemplary damages.

### Interest

[17] The Plaintiff prayed for interest of 25% p.a on all pecuniary prayers from the date of judgment till payment in full. An award of interest is also discretionary, see Harbutt's Plasticide Ltd V Wyne Tank & Pump Co. Ltd [1970] 1 QB 447. Considering the circumstances of this case, I award the plaintiff interest on general and exemplary damages at a rate of 18% per annum from the date of judgment until full payment.

### Costs

- [18] As per **Section 27(1) CPA**, costs of every proceeding are awarded at the discretion of court and as per the authority of Mungecha V AG [1987] HCB 55, costs should follow the event unless Court orders otherwise. In the present case, I accordingly award the Plaintiff costs of the suit as the successful party. - [19] In conclusion, judgment is entered for the Plaintiff against the Defendant in the following terms: - a) It is declared that the plaintiff was unlawfully arrested and detained by the agents of the defendant. - b) The Plaintiff is awarded general damages of UGX 8,000,000/= and exemplary damages of Ugx $2,000,000/=$ . - c) The Plaintiff is awarded interest on general and exemplary damages at a rate of **18%** per annum from the date of judgment until full payment. - d) The Plaintiff is awarded costs of the suit

Dated this Rowlay of September, 2024.

**Byaruhanga Jesse Rugyema TUDGE**