Ochola James v Owor Michael and Others (Civil Appeal No 016 of 2023) [2023] UGHC 515 (8 April 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT TORORO CIVIL APPEAL NO 016 OF 2023 [ARISING FROM MULANDA CIVIL SUIT NO. 0001 OF 2023]**

# **OCHOLA JAMES:::::::::::::::::::::::::::::::::::::::::::::::APPELLANT VERSUS**

- **1. OWOR MICHAEL** - **2. ONYANGO BERNARD** - **3. OKONGO AJIYA** - **4. OTHIENO MOI** - **5. OBBO MARKO** - **6. OKOTH DEO** - **7. OTWENY GOD** - **8. OWOR CONSTANTIN** - **9. ONYANGI**

**10. OKONGO FRANCIS:::::::::::::::::::::::::::::::::::::RESPONDENTS**

### **JUDGMENT**

## **BEFORE: HON. DR. JUSICE HENRY I. KAWESA**

The brief facts of this Appeal as stated by the Appellant is that the Appellant filed the CS No 001/2023 in the Court at Mulanda where his claim against the Defendants was a declaration that the Defendant assaulted the Plaintiff on 6 th of February 2023, compensation for the harm the Defendants caused on the Plaintiff's body as a result of the assault, and a declaration that the Plaintiffs caused the unlawful arrest and detention of the Plaintiff, compensation for the unlawful arrest and detention of the Plaintiff, general damages, interest and costs of the suit.

Upon hearing the matter, the Magistrate found the case against the Plaintiff and being dissatisfied with the judgment the Plaintiff now appeals against the judgment and orders of the lower Court on grounds that he laid down as follows:

### **Grounds of appeal**

- *1. Whether the trial Magistrate erred in law and fact when he ignored the Plaintiffs evidence and gave great weight to the Defendant is evidence and found that the Defendant did not assault the Plaintiff.* - *2. Whether the learned Magistrate erred in law and fact when he disregarded the evidence of the Plaintiffs witnesses who identified the Defendants and found that the Defendant did not assault the Plaintiff.* - 3. *Whether the trial Magistrate erred in law and fact when he disregarded the fact that the Defendants in paragraphs 10 and 11 of their Written statement of Defense averred that DWI and DW3 reported the Plaintiff to Nabiyoga Police Post vide SD Ref 0682-2022 and DI; Owor Michael during cross examination admitted to be the complainant in the criminal case that was reported to Nabiyoga Police Post and found that the Defendant did not cause the unlawful arrest and detention of the Plaintiff*.

#### **Duty of first Appellate Court**

This Court being the first Appellate Court has a duty to re-evaluate the evidence and come up with its own findings on the facts and the law bearing in mind that it did not have the opportunity to observe the witnesses in open Court. (*See Kifamunte Henry Vs Uganda SCC Crim; Appeal No 10 of 1997*).

#### **Resolution of the grounds of Appeal**

#### **The Appellant argued ground 1 and 2 concurrently. These are:**

1. Whether the trial Magistrate erred in law and fact when he ignored the Plaintiffs evidence and gave great weight to the Defendant's evidence and found that the Defendant did not assault the Plaintiff

2. Whether the learned Magistrate erred in law and fact when he disregarded the evidence of the Plaintiffs Witnesses who identified the Defendants and found that the Defendant did not assault the Plaintiff.

Counsel for the Appellant pointed out that the standard of proof in civil cases is on the balance of probability and the burden of proof lies on the party that alleges the particular facts. He made reference to **Section 101 (2) of the Evidence Act** which provides that when a person is bound to prove the existence of any fact the burden of proof lies on that person. He pointed out that the Plaintiff/Appellant had the duty to prove the case in the lower Court and prove the case on the balance of probability. He then referred the Court to the four witnesses that the Plaintiff brought to Court to prove his case against the Defendant comprised of PW1 Ochola James (Plaintiff), PW2 Ochieng Joseph, PW3; Isabirye Henry medical personnel and PW4 Oketch Paul. He pointed out particularly that PWI, PW2, PW3, were all eye witnesses and they gave direct evidence to corroborate the Plaintiffs case in the lower Court. He referred to **Section 59(1) of the Evidence Act** which provides that "*oral evidence must in all cases whatever be direct and that is if it refers to a fact which could be seen it must be the evidence of the witness who says he or she saw it*"

It was his submission that PW1, PW2 and PW3 saw the Defendants when they were assaulting the Plaintiff. Regarding the evidence ofPW4 Counsel referred to the principles governing identification as laid out in the case of

### *Uganda versus Gidongo Martin HCSS NO. 042/2016* that;

"*identification can be influenced by a Witness' ability to observe, memorize, fear, Panic or similar emotion, the effects of lighting and distance at the scene of crime, but also by association and suggestion after the offense, of which have an impact on the accuracy of the eyewitnesses' memory*."

He then went through the evidence of the defence as per DWI to DWI6 and points to an identified puzzle as to how the trial Magistrate was inclined to believe the defence evidence which in his view was riddled with inconsistencies. He pointed at the fact that there was no proof of all allegations by defence yet the evidence of the Plaintiff and his witnesses was consistent.

In answer to that submission the Defendants in their submissions argued that the trial Magistrate did not ignore the Plaintiff's evidence but gave it due weight but it is a fact that the record of proceedings indicates that the Plaintiffs Witnesses were contradictory in their evidence. He pointed out the contradictions in PW1's evidence during cross examination and evidence in the chief when he said that at 8:00 p.m. on the fateful day he was coming from the trading centre heading home when he saw a moving light of the motorbike coming in front of him and it stopped while moving with John PW2. However, PW2 contradicted him in his examination in chief when he said that it was at 8:00 p.m. while walking with the Plaintiff going home that they saw a motor vehicle coming from behind them and it stopped. they point out that these are contradictory statements and that is why the law stipulates where such contradictions are shown in the case unless they are sufficiently explained they should not be ignored. They argued that the evidence adduced by the Plaintiff did not prove the Plaintiffs case on the required standard of proof and the Magistrate was right in his findings thereon.

I have internalized the evidence on record. I find that the evidence on record when weighed. It is fact that the Judgment of the trial Magistrate went through a detailed analysis of all evidence on record as assembled by the Plaintiff and the defence.

This is also clear that the Plaintiffs' evidence had some contradictions just as the Defence. The Magistrate considered all and came to a conclusion that the defense case rebutted the Plaintiffs allegations thereby pushing the burden on the Plaintiff

to prove on the balance of probability the allegations. The evidence indicates that a sort mob attacked the Plaintiff. In rebuttal, however the evidence of each Defendant points at the defense of alibi. The law is that when a Defendant puts up that defense of alibi, it pushes the burden back to the Plaintiff who is alleging his involvement to put that Defendant back on the scene of crime. As noted, this ground turns on the ability to identify the participation of the Defendants. There are however serious inconsistencies in the identification of the Defendants by the Plaintiffs Witnesses given the fact that the offense happened at night and there were many people involved. The evidence as it is therefore could not lead to a finding that the Defendants were the culprits given their defenses as put forward on record.

I am in agreement with the findings of the trial Court on this fact that the plan tiffs evidence did no suffice to enable Court to make a finding that they participated. I do not find merit in grounds 1 and 2 above and they accordingly fail.

#### **Ground 3**

Whether the trial Magistrate erred in law and fact when he disregarded the fact that the Defendants in paragraphs 10 and 11 of their written statement of Defense averred that DWI and DW3 reported the Plaintiff to Nabiyoga Police Post vide SD ref 0682-202 and the DI Owor Michael during cross examination admitted to being the complainant in the criminal case that was reported to Nabiyoga Police Post and found that the Defendant did not cause the unlawful arrest and detention of the Plaintiff.

I have gone through the submissions by both the Plaintiff and the Defendant in the lower Court and also in this Court. Counsel for the Appellant on this ground claims that the Defendants in paragraph 10 and 11 of the written statements of Defense admitted that it was true the 1st and 3rd Defendants reported the appellant to the police post on accusations of threatening violence and criminal trespass whereupon the Plaintiff was arrested and detained at Nabiyoga police post, transferred to

Mulanda police station and then Tororo Central Police station. He then refers to the evidence of PW I and PW2 and in his opinion this evidence collaborates each other to prove that the Defendants were the complainants and they led to the arrest of the Plaintiff. He referred to paragraph 4 of page 19 of the Judgment and faulted the magistrate's reference to false imprisonment yet the issue was that it was the Defendants who caused the Plaintiffs unlawful arrest and detention.

The Magistrate reached the decision that the Defendants did not cause the unlawful arrest and detention of the Plaintiff. In rebuttal and in their submissions the Respondents referred to page 18 of the Judgment of the Court where the Magistrate acknowledges that Plaintiff and his friend were alleged to have been found with pangas behind 1st D and 3rDefendant's house and were suspects so a report was made to police.

The suspected intention of causing violence was the reason why the first and third Defendants Respondents reported the matter to the police post and a case was registered against them. They refer to the evidence of DWl being a complainant in that police case and they argue that this does not constitute an offense and therefore the trial magistrate was not in error.

I have looked at the evidence on record as allude to by both the appellant and the respondents. I have also looked at the reasoning of the magistrate in the judgment. I find that in the process of analyzing the facts and the circumstances under which the Defendants were alleged to have caused the arrest of the Plaintiff, the trial magistrate referred to the case **of Julius Bitature versus Attorney General as cited in Mugwanya Patrick versus AG HCTCS NO 154/2009**, which discusses false imprisonment. In the process of discussing that case the trail Magistrate went off truck and concentrated on the offense of false imprisonment and did not address the question of unlawful arrest and the as to who caused the arrest of the Plaintiff in the first place.

Looking at the evidence as it is and the pleadings before Court as provided by the parties, it is clear that even before the event of the arrest, according to the written statement of Defense the Plaintiff was allegedly found at the home of the first Defendant with pangas and sticks with the intention of causing violence and the matter was reported to Nabiyoga police station where a case for threatening violence and criminal trespass under a Police reference had been made. The evidence on record however shows that the assault happened before the arrest.

Evidence shows that when the Plaintiff reported to police it is the police who informed him that a complaint had already been raised against him and he was arrested. The law in Uganda does not make it an offense to report another person to police who is suspected of threatening the peace or tranquillity of another. This point was elaborated in the judgment by its reference to the law as contained under **Section 23(1) of the police Act** that "a police officer May without a Court order and without a warrant arrest a person if he or she has a reasonable cause to suspect that the person has committed or is about to commit an arrestable offense.

When the police get information, they act on that information and make their own decision whether to arrest the culprit or continue with inquiries. Where the Defendants make a report to police informed by their own belief that perhaps an offense is about to be committed as a citizen of the nation, they would have done their job and the assessment of this information is outside their ability, but becomes the responsibility of the relevant government entity which is the Police and the Director of Public Prosecutions. It is up to the police to assess that information and act as per **Section 25 (I) of the Police Act** which provides that "a police officer on arresting a suspect without a warrant shall produce the suspects so arrested before a Magistrate's Court within 48 hours unless earlier released on bond".

This is in turn in conformity with **Article 23(1) of the Constitution of the Republic of Uganda** which provides that "no person shall be deprived of Liberty except in any of the circumstances under the Constitution". Therefore, it is the duty of every citizen to report to police any suspected breach of peace or suspected violence upon any person. Once this is done, the police take over to ensure that there is peace, law and order in society without violation of anybody's right. The Defendants therefore took the right step to report the matter to the police and given the background in the evidence which shows that even the Village had concerns about the security of their area and had listed possible culprits in a village public meeting, their suspicion and report to police was lawful and without Malice.

The Plaintiff did not lead any concrete evidence before Court to show that the Defendants caused his unlawful arrest. For the reasons I have stated above, I do not find merit in this ground of appeal and it accordingly fails.

All in all, I find no merit in this appeal, it fails on all grounds raised and it is accordingly dismissed with costs.

I so order.

…………………………..

Dr. Henry I Kawesa

**JUDGE 30/01/2025**