Okeny and Another v Attorney General and Others (CIVIL SUIT NO. 401 OF 1995) [2000] UGHC 63 (12 April 2000)

Full Case Text

### THE HIGH. COURT OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL iSUIT NO.. 401 OF 1995

plaintiff •.y? TEBERTO. OKENY AND ANOTHER ::::::::: ::::::::::::

VERSUS

THE ATTORNEY GENERAL AND OTHERS DEFENDANT BYAMUGISHA • ft «'• a . BEFORE: HON. LADY JUSTICE C. K.

JUDGEMENT

Government Proceedings Act. The .action is also against the . . Editor of the third defendant who is responsible for the publication and circulation of District brought this action against the-Attorney General in his • representative capacity under the provisions of section 11 of the . "the New Vision" newspaper. The plaintiff^formeriy Constituent Assembly Delegates fro.m Kitgum

The main thrust of the plaintiff's case is that on the 22nd day of September, 1994 one government representat ive*,* Kitgum district; addressed a large gathering of people letter published by the d defendants in the New Vision newspaper volume 9 No . 231 dated, 29th September, 1994 (exhibit P.1). The words which are being complained of are the following:~ second and th.ii rally attended by a George William Odwong the then central b1 i c where he u t \*: r e d the words complained of and wh: h were

"All Constituent Assembly Delegates hailing from Acholi are fuelling and fanning the insecurity caused by the rebels of Kony's Lord's Resistance Armq...... both the delegates and the rebels are advocating multipatism and are fighting tooth and nail to see that the N. R. M. Government is out of power ...... they are encouraging and supporting rebel activities, ....... they have failed to dissasciate themselves from Kony's activities."

$\mathcal{S}$

$\Gamma$

$-64$

It was contended by both plaintiff's that the above words in the's natural and ordinary meaning are defamatory of them.

The first defendant in the written statement of defence contended in paragraph three thereof that the alleged utterances are a mere publication by the second and third defendant's as contained in exhibit P.1 and not an utterance or publication by the first defendant. It was further contended, that if the words were uttered than the said words amount to a privileged statement of fact made in performance of a duty.

The second and third defendant's filed a joint written statement of defence in which they admitted having published the article but specifically denied that the articles were published falsely 20 or maliciously of the plaintiff's in the way of their offices or that the words, understood to refer to or were capable of referring to the plaintiff's. The defence also alleges that the words were true in so far as they were statements of fact and

were fair and bonafide in so far as the words amounted to comment on a matter of public interest.

The following were the agreed issues:-

ı.

Whether the words complained of were uttered by the representative of the first defendant.

- $2.$ Whether the words complained of referred to and were defamatory of the plaintiff's. - Whether the words constituted fair comment or made under $3.$ qualified privilege.

Whether the plaintiff's are entitled to damages and if so 4. ıΟ what quantum.

Turning to the issues as framed, since it is the plaintiff's case that the first defendant's servant uttered the words complained of, they have a burden to prove the words uttered as pleaded in the plaint. They did not attend the rally and the only witness who did was Otto (P. W 3). In his evidence in chief he stated that he attended the rally which was addressed by the Central Government Representative on 22/09/94. The witness stated that the Central Government Representative talked with bitterness on insecurity in the district. Then he said:-

$\iota$

$20$

"At that time trebe were terrible in all corners of the district. They were even addressing people in the villages. We used to receive reports. He was trying to challenge the whole community of Acholi, that rebel activities are rampant and the Acholi's were not condemning them. That they were being given food. At the same time you have elected people to the Constituency Assembly, who are multipartysts. He specifically mentioned Okeny whom he said did not want this government. He said that Okeny and Kamakech are D. P. S and do not like the movement. He said i O that they were preaching multiparty when this government is The rebels are preaching that multiparty must very good. be revived otherwise the war would continue. He concluded by saying that rebels and those elected to the Constituency Assembly are brokers and whatever propaganda come out they $1C$ are equal. As such you Acholi have elected rebels. He said that he would not be happy if Constituency Delegates are consulting me and they do not condemn rebels. He said that the Constituency Assembly delegates from Acholi were supposed to be at the rally but were absent. In particular $2\mathcal{O}$ delegates from Aruu, Chwa Woman Representative from Kitsum. Rebel activities were rampant in this area at that time."

Under cross-examination the witness stated that Tiberio Okeny who is the first plaintiff was cited as someone who is not interested. in the present government and did not say anything else. $25$ He further stated that at the time of the rally the situation was

*VJ.*

•' *I*

**I**

burning houses and children terrible and the-witness saw rebels being abducted.

and twelve (12) of the plaint as having been uttered by the servant oE the f i rs t defendant are at variance with what the witness stated in court. The words pleaded were instead published in the New Vision Newspaper of 29/09/94. I therefore take it that the words uttered by the Central Government The two do not tally in my view. The plaintiff•s two *(G* I dif fevent causes of action. The first is based on words ^uttered- as pleaded second was based on publication by the second defendants which were not pleaded. rely on *isr* representative are those given by Otto (P. W.3) in his testimony. had and third The plaintiff's cannot the words published by the second and third defendants to maintain a cause of action against the first defendant especially the/actual *I* V.n paragraphs ten and twelve *and* the The words which were pleaded by the plaintiff's in paragraphs ten so when the latter denied knowledge or utterances nor that they were ever uttered.

> *of* the cause of action for defamation that the words complained of should be uttered of the 20 plaintiff(s) if more than one. The testimony given by Otto as to the words uttered by the servant of the first defendant do not even show that they were defamatory or that they referred to them. Where a plaintiff is not named the test to be applied'in deciding whether the words uttered refer to him/her is whether It is an essential eler.en

Che words are such with the plaintiff to believe that he/she was the person referred to. as would reasonably lead persons acquainted *i*

a the testimony of Otto was uncontroverted.. He pointed out that named and that the In the matter now before oSurt it was submitted by counsel for the plaintiffs that the-^eTrt^^lr^'Over>ilm^rrc^^e^^s^nf^tr±Ve—t-haft.

or the speech As regards the article published by the second and third defendants counsel submitted that it does not mention their names but the use of the words *IO* like. '"Acholi CADS and "All the Acholi Constituent Assembly Delegates" would reasonably lead tjb persons acquainted with the plaintiffs to believe that they were the persons referred to. were directed at them.

I agree with the submission of counsel that the publication of the article complained of referred to a small group of people who *IS* were ascertainable and therefore anyone who read the story- and knew them would have understood the story to refer to them.

The question is whether speech of ment Representative was defamatory. I have tried to reproduce the testimony of Otto who the rally and heard the 2-0 words uttered by the representative of the first defendant. Would reasonable people have understood the words uttered in a defamat o r y sense ? First of all, it was not proved what exact words were uttered by the first defendants servant. The circumstances under which the words were uttered was insecurity *2-5* was present at the Central Gove

which was prevailing in the district of Kitgum at that time. According to Otto (P. W. 3) the security situation was terrible. Therefore the reference to the two plaintiffs as being members of the Democratic Party and proponents of multiparty demacry was not defamatory in my view. The plaintiffs in their testimony in court stated that they believe in multiparty democracy. The

$\Gamma_{\mathcal{M}} \cup \Gamma$

armed rebels of the Lord's Resistance Army apparently also believe in multiparty democracy. The difference between the plaintiffs and the armed rebels, is that the former according to their testimony which I believe, is that they believe in peaceful $\iota \alpha$ changes through the ballot. But there is no doubt in my mind that the words allegedly uttered by the servant of the first defendant and later published in exhibit P.1 were for purposes of comparison between the armed rebels and the plaintiffs. The words were also directed at a community of the Acholi. P. W.1 in $15$ his testimony was emphatic that he has been vocal about the ideals of multiparty democracy and he is opposed to the movement type of governance. He has issued press releases and held press conferences and has been outspoken about this issue. Now if they are people who knew the plaintiffs beliefs and those of the $20$ rebels especially in Acholi also later read the article in exhibit P.1 as a whole, I do not think they would have understood in a defamatory sense. According to the article the it plaintiffs and the armed rebels of the Lord Resistance Army share common ideals, the difference being in the means to achieve them. $25$ It is therefore my finding that the article (exhibit) and the words allegedly uttered by the servant of the first defendant were not defamatory of the plaintiff.

$\mathcal{L}_{\mathcal{M}}\mathcal{M}=\mathcal{L}_{\mathcal{M}}\mathcal{M}\mathcal{M}=\mathcal{L}_{\mathcal{M}}\mathcal{M}$

**The State Links**

$\mathcal{L}_{i} = \mathcal{L}_{i}$

the same that

$r-l$ This finding more $or$ ${\tt less}$ dispases of the whole of the plaintiff's claim with the result that the plaintiff's claim will be dismissed with costs.

$11/14$ .

C. K. Byamugisha **JUDGE**

$1/2/2000$

$12/04/212$

: number for pffs $Mr$

$\cdots$

$\mathcal{S}$

$\iota$ O

$15$

$7 \text{ yr} = 4.5 \text{ cm}^2$ 12.04/2000 Longel to serve Longter $c.$ U. $0.6.$ $\cdots$ . $A$ oin. $\n *flux h*-*s*\n$

that I mind on the plantpr that unablished S. Staci change for in def. $2 \cup \lambda$ $\lambda$ $\lambda$ $\lambda$ $\lambda$ .

$\int V d\zeta$ er un dervend = or signed $41$

$\mathcal{L}^{\text{total}}$ the disability with an end of had

## **THE REPUBLIC OF**

**-^1 -**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **CIVILSUIT NO. 401 OF 1995**

#### **} APPLICANTS 1. TIBERIO ATWOMA OKENY } 2. LEANDER KOMAKECH**

# **VERSUS**

#### **DEFENDANTS 1. THE ATTORNEY GENERAL OF UGANDA } 2. THE EDITOR "THE NEW** VISION" **NEWSPAPER } 3. THE NEW VISION PRINTING AND PUBLISHING}**

# **DECREE IN THE ORIGINAL SUIT** *to*

CLAIM FOR: General damages for libel and slander, interest and costs.

THIS SUIT coming on this twelfth day of April, 2000 for final disposal before Her Lordship, Lady Justice C. K. BYAMUGISHA, in the presence of Mr. Mubiru Stephen, Counsel for the plaintiff, Mr. Matsiko, Senior State Attorney, Counsel for the first defendant and in the absence of the second and third defendants and their Counsel.

IT IS HEREBY ORDERED and DECREED that the Suit be dismissed and it is hereby dismissed with costs to the defendants.

GIVEN under my Hand and the Seal of this Court this twelfth day of April, 2000.

**I**

**DEPUTY REGISTRAR**

**^<7**

**i**

**I**