Omari and Another v Hon. Adoa and 5 Others (Civil Suit 734 of 2021) [2024] UGHCCD 155 (11 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [CIVIL DIVISION]**

## **CIVIL SUIT NO. 734 OF 2021**

#### **1. HASSAN W. OMARI**

## **2. VIOLET ADHIAMBO OOKO:::::::::::::::::::::::::::::::::::::::PLAINTIFFS**

#### **VERSUS**

- **1. HON. HELLEN ADOA** - **2. CAPT MUGOGO MUSA** - **3. JOYCE IKWAPUT NYEKO:::::::::::::::::::::::::::::::::::::::::DEFENDANTS** - **4. MUGABI INNOCENT** - **5. ATTORNEY GENERAL** - **6. UGANDA REVENUE AUTHORITY**

## **BEFORE: HON. JUSTICE SSEKAANA MUSA**

#### **JUDGMENT**

The plaintiffs brought this application under Article 126 of the Constitution, Section 20 of the East African Community customs managing Act 2004,Section 1,6,9&10 of the Human Rights enforcement Act 2019 and Order 4 of the Civil Procedure Rules S. I 71-1 . The plaintiff's claims against the Defendants is jointly and severally for declaratory orders that the defendants unlawfully impounded and disposed off the plaintiffs' fish contained in vehicles Registration numbers UBH 606P, UAF 813L,UBA 893G & UBE 894Z and that the same amounts to conversion and deprivation of the Plaintiffs' right of property.

That the 5th defendant's employees' acts of continuous seizure of the plaintiffs' motor vehicles as mention above and the fish therein is unlawful and that the 6th defendant breached its duty of care owed to the Plaintiffs' goods in the motor vehicles mentioned above while in transit from Kenya via Uganda to Democratic Republic Congo.

The defendants are jointly and severally liable for all damages and losses incurred by the plaintiffs including lost income arising from loss of business, the plaintiffs also requested this honourable court to grant Orders for recovery of the fish whose worth/value was UGX.2,772,000,000/= and hard cash of 800,000,000 that was in the motor vehicles mentioned above at the time of unlawful seizure, compensation to the plaintiffs for breach of their constitutional right to their property that was in the motor vehicles mentioned above and special damages, General damages,exemplary damages, aggravated damages , an interest of 20% from the date of judgement until in full and costs of the suit.

The 1st-5th defendants jointly filed their written statment of defence wherein they denied the plaintiffs' claims and raised a preliminary point of law that the suit raises no cause of action against the 1st – 5th defendants are protected from proceedings of this nature by statute whereas the 1st & 3rd defendants deny each and every allegation contained in the Plaint.

The 1st-5th defendants contend that contents of paragraphs 6,7,8,9,10,11,12,13,14&15 that they were executing a Regulatory mandate guaranteed by the Fish Act Cap 197 and regulations set there under.

The 4th defendant on the 13th day of October,2021 filed a Miscellaneous cause No. 09/2021 in the Chief Magistrates' Court of Entebbe seeking Orders to allow the Fisheries Inspector and other law enforcement agencies to open motor vehicles UBH 606P, UAF 813L,UBA 893G & UBE 894Z and dispose of immature fish seized as contraband contained therein, sell off the mature fish by way of disposal and deposit the proceeds in the consolidated fund and file a report in court within 30 days.

The court eventually issued the Order that led to a verification exercise and it was confirmed that the consignment indeed contained immature fish which contravenes section 27 of the Fish Act ,Cap197. The impounded fish was 6-11 inches below the legal length. The plaintiffs attempted to set aside the Order by filing Miscellaneous applications No.130&131 in the Chief Magistrates' Court of Entebbe which were dismissed with Costs to the 4th defendant.

The 1st-5th defendants proceeded to execute the Order and filed preliminary and final reports in Court and on the 15th day of October, 2021 the Defendants in compliance with the Court Order vide Miscellaneous application No.09 of 2021 of Entebbe ascertained that the fish consignment is endemic to water bodies within Uganda and therefore contravenes the Fish (Immature Fish) Rules, SI No.73 of 2002

The 6th defendant in her defence raised a preliminary point of law that the suit against them is filed in a court lacks original jurisdiction to try the same and ipso facto ought to be dismissed with costs, denies each and every allegation against her plaint.

Furthermore, the 6th defendant contends that at all material times , it's actions were lawful and that there is no breach of duty of care as alleged therefore the plaintiffs claims are misconceived and they are not entitled to the reliefs sought in the plaint further prays that this court dismissed the suit with costs.

Furthermore, in the Plaintiffs' reply to the 1st -5th written statement of defence and deny each and every allegation made therein. That in regards to paragraph 3 of the written statement of defence the 1st-5th defendants are personally liable for their wrongful acts which violated the plaintiffs' right to property, paragraph 4 that the regulatory mandate established under the Fish Act Cap 197 and the regulations therein do not extend to goods in transit passing through Uganda from Kenya to Democratic Republic of Congo , that the Court Order obtained by the 4th defendant vide miscellaneous Cause No.09/2021 was obtained exparte basing on false information by the said defendant and that there were Miscellaneous Causes No. 027& 28 of 2021 filed on the 12th day of October,2021 in the Chief Magistrates Court of Kasese at Kasese seeking for the unconditional release of the plaintiff's' motor vehicles before the 4th Defendant filed Miscellaneous cause No.09/2021 on the 13th day of October,2021 in the Chief Magistrates Court of Entebbe at Entebbe which amounts to abuse of court process that must be sanctioned by this court.

The plaintiffs deny contents of paragraph 5 of the 1st – 5th written statement of defence that the fish contained in the motor vehicles were goods in transit from Kenya to DR Congo through Uganda and the same was not in any way intended for consumption of the Ugandan market therefore the same does not contravene the Fish(immature fish) Rules S. I No.73 of 2002 as claimed.

That the defendants hijacked and unlawfully disposed off the plaintiffs' goods which has caused suffering, loss and inconveniences to the plaintiffs as stated in the plaint. The plaintiffs pray that court finds the defendants' defence a mere sham that should be ignored and Court be pleased to grant the reliefs sought in the Plaint.

The parties filed a joint scheduling memorandum dated 1st December 2022 with the following agreed facts, issues and documents.

## **Agreed facts.**

- 1. On the 11th day of October,2021, the Plaintiff's' consignments (fish) that was being transported in Motor vehicles registration numbers UBH 606P, UAF 813L,UBA 893G & UBE 894Z were impounded at Mpondwe Boarder Point in Kasese district by the officials from the Directorate of Fisheries resources and were later transported from Mpondwe to the offices of the Ministry of Agriculture,Animal Industry and Fisheries in Entebbe. - 2. On the 13th day of October,2021,the 4th defendant obtained a court Order vide Miscellaneous Cause No.09/2021 from the Chief magistrate court of Entebbe at Entebbe to allow the fisheries inspector and other enforcement agencies to open motor vehicles registration numbers UBH 606P, UAF 813L,UBA 893G & UBE 894Z and dispose off immature fish by way of disposal and deposit

proceeds in the consolidated fund and file a report to Court within thirty days.

- 3. The consignments were opened and the fish contained therein was disposed off. - 4. The plaintiffs filed Miscellaneous Application No.130&131 to set aside the Order in Miscellaneous Cause No.09/2021 and the same were dismissed with costs. - 5. On the 15th day of October, 2021 in the presence of the officials of the 6th defendant and officials of the Directorate of Fisheries Resources and in compliance with the Court Order, the seals were removed and the Directorate of fisheries conducted the verification of the goods. - 6. On the 20th day of October,2021, a locus in quo was conducted at the Directorate of Fisheries in Entebbe in the presence of counsel for the plaintiffs , the 4th defendant and his legal representative. - 7. The Order in Misc. Cause No. 09/2021 was executed and the fish was disposed off and both the preliminary and final reports were filed in court. - 8. The plaintiffs filed Misc. Application No. 700 of 2021 for interim stay and Misc. Cause No. 273 of 2021 for Judicial review and all were dismissed by this Honourable Court. - 9. The plaintiffs filed Misc. Application No. 1402 of 2021 and Misc. Cause No. 073 in the Commercial Division and the same were withdrawn. - 10. The plaintiffs filed Misc. Application No. 792 of 2021 in this Honorable Court and the same was dismissed with costs to the 4th Defendant.

# **AGREED ISSUES.**

- *1. Whether the plaint discloses a cause of action against the 6th defendant?* - *2. Whether the 1st-4th Defendant's' act of impounding and disposing off the Plaintiff's' fish contained in motor vehicles UBH 606P, UAF 813L,UBA 893G & UBE 894Z was lawful?* - *3. Whether the 6th defendant breached its duty of care owed to the plaintiff's' property contained in motor vehicles UBH 606P, UAF 813L,UBA 893G & UBE 894Z?* - *4. What are the remedies available to the parties?*

The plaintiff was represented by *Baluku Geoffrey* and *Jamal Bakhit Ahmed* while the 1st-5th defendants were represented by *Twinomugisha Mugisha (SA) & Counsel Rubagumya John Paul* and 6th defendant was represented by *Nahumuza Bernard*.

#### **DETERMINATION.**

## *Whether the Plaint discloses a cause of action against the 6th Defendant?*

The Plaintiffs' counsel did not submit on this issue however, the 6th Defendant contends that the Plaintiffs did not disclose a cause of action in their Plaint against the 6th Defendant and failed to discharge the burden of proof to its required standard as stated in *Section 101* of the *Evidence Act Cap 6* and in the case of *Nantume Annet Nyinimusingo &Anor vs. Ibrahim M Bachu& Anor HCCS No.375 of 2018* where Justice Florence Nakachwa stated the established position of the law that: *The general rule in a civil matter is that he or she who asserts must prove his or her allegation to the satisfaction of the trial tribunal or court. The standard of proof required to be met by either party seeking to discharge the legal burden of proof is on the balance of probability.*

Furthermore in **Order 7 Rule 11(a)** of the **Civil Procedure Rules S. I 71-1** provides that a Plaint may be rejected by the court if it does not disclose a cause of action. In order to prove that there was a cause of action, the plaint must show that the Plaintiff enjoyed a right ,that the right was violated and that the defendant is liable as established in the locus classicus case *Tororo Cement Co Ltd vs. Frokina International Ltd,SCCA No. 2/2001***.**

The amended plaint states that the plaintiffs hired motor vehicles to transport their fish from Kenya to DR Congo through Uganda and that the fish was properly inspected by the 6th defendant that affixed seals for safety and further monitoring. The vehicles were impounded at Mpondwe, illegally broken into by the Fisheries Protection Unit and driven to Entebbe at the Directorate of Fisheries Resources Office . That the 4th Defendant "fraudulently" obtained a court Order to dispose off the fish by the 1st -4th Defendant.

The plaintiffs contended that the 6th defendant breached its statutory duty of care to the plaintiffs goods that were in transit from Kenya to DR Congo hence under customs control. There are no annextures attached to the amended plaint save for the notice of intention to sue which is mentioned in the body but was not be attached to the plaint.

Whereas the facts may indicate that the plaintiffs enjoyed our right to transport their fish from Kenya to DR Congo and that the right may have been breached there are no facts in the plaint that indicates in any way whatsoever that the 6th defendant is liable the facts do not state that it is the 6th defendant who impounded the motor vehicles or broke into them or disposed of the fish the plaint merely states that the 6th defendant breached its duty of care to the goods without stating how this was done if at all .

The plaintiffs counsel did not make any submissions in opposition of this issue contending that it was never an issue raised in court. This was an issue raised in the joint scheduling memorandum which was filed by all parties jointly.

## *Analysis*

In the case of *Auto Garage vs Motokov (No.3) [1971] EA. 514* it was held that a case to disclose a cause of action must show that; the plaintiff enjoyed a right, the right had been violated and that the defendant is liable and as such the plaint did not disclose a cause of action against the defendant. As to whether the suit disclosed a cause of action against the 6 th defendant, a cause of action is said to be disclosed if in the pleadings there are averments showing the existence of the plaintiff's right, the violation of that right and of the defendant's liability for the violation. (See: *Supreme Court Constitutional Appeal No.2 of 1998: Ismail Serugo Vs Kampala City Council & Another.***)**

Order 7, Rule 11 of the Civil Procedure Rules provides that the court shall reject a plaint which does not disclose a cause of action.

The plaintiff brings this suit to recover fish impounded and disposed of by the Fisheries Department but contends that the 6th defendant breached its duty of care it owed the plaintiffs. The plaint however does not show what cause of action the plaintiffs have against the 6th defendant in the matter before court.

The provision of order 7 rule 11 (a) is that the plaint shall be rejected where it does not disclose a cause of Action. In *Cottar v Attorney General for Kenya 193 AC p. 18* it was said by Sir Joseph Sheridan CJ as he then was

*"What is important in considering whether the cause of action is revealed is by the pleadings is the question to what right has been violated. In addition of course the plaintiff must appear as a person aggrieved by the violation of his right and the defendant as a person who is liable, then in my opinion a cause of action has been disclosed and any omission or defect may be put right by amendment. If on the other hand any of those essentials is missing no cause of action has been shown and no amendment is permissible."*

To enable a court to reject a plaint on the ground that it discloses no cause of action it should look at the plaint and nothing else. When a court is considering whether a pleading raises a cause of action or not, it must only look at that pleadings only. (See: *Wycliffe Kiggundu Vs Attorney General: Supreme Court Civil Appeal No.27/1992).*

A careful scrutiny of the plaint reveals that the plaintiffs claim is wholly against the 1st-5 th defendants who impounded the trucks containing the fish which was premature and against the law. The 6th defendant cannot owe a party who is in breach of the law any duty to protect his goods which are contraband.

Applying the principles enunciated above to the instant case, the plaintiffs appear as persons aggrieved by the violation of their rights and for which the 6 th defendant is not liable. The plaint does not set forth any facts which would disclose a cause of action against the 6th defendant who is only responsible for tax matters and the said consignment was liable to pay any taxes. The plaintiffs' allegation against the 6th defendant is for negligence and does not set out how the 6th was negligent and no particulars of negligence are set out in the plaint.

#### *Whether the 1st -4 th defendant's act of impounding and disposing off the plaintiffs fish contained in motor vehicles UBH 606P, UAF 813L,UBA 893G & UBE 894Z was lawful?*

The plaintiffs' counsel submitted that in witness statement of PW1 that both plaintiffs were licensed exporters of fish carrying on business from Kenya and adduced evidence of the East African Community Certificate of Origin and the Fish products import/export permit in respect to the fish contained in motor vehicles UBH 606P and UAF 831L.

PW1 testified that he declared the mentioned vehicles to the 6th defendant vide entry number D7782 and D7736 as goods exported by him to Bugume Kalulu in DR Congo and URA seals were fixed for safety and further monitoring . On the 3rd day of October,2021 , PW1 received a call from Monday Ali "his agent" that the mentioned motor vehicles were impounded by Capt. Mugogo Musa (2nd Defendant) on allegations that they contained immature fish from Ugandan water bodies. That the 1st Defendant wrote a letter to the 6th Defendant for purposes of inspecting the impounded vehicles .

That on the 15th day of October,2021, PW1 watched the NTV Uganda news and saw the URA seals affixed on his mentioned vehicles and those of the 2nd plaintiff being broken by the 5th Defendants' employees (1st, 3rd & 4th defendants) in the presence of officials of the 6th defendant, the 4th defendant in the company of the 1st &3rd defendants while at the Directorate of Fisheries Resources offices disposed off the fish that belonged to PW1 and the 2nd plaintiff therefore the 1st, 2nd & 3rd defendants' acts are unlawful and they are liable for the damage caused to the plaintiffs not withstanding the vicarious liability of the 5th defendant.

The plaintiff's counsel further submitted that once the court finds that actions of the defendants were unlawful, then the defendant's must be held liable for damages for the losses suffered by the plaintiffs. He contended that the plaintiff's witnesses testified that received an amount of money (800,000,000/=) for the plaintiffs which was in the motor vehicle. Counsel contended that the burden of proof shifted to the 4th defendant to prove that the said amount was not in the plaintiffs' motor vehicle and this was to be by way of a search warrant.

The 1st -5 th defendant's counsel submitted that the said fish which was impounded was in the category of prohibited and restricted goods under the EACCM Act/2004 since it was below the length of 20 inches required in Uganda.

The defendants' contended that they applied and examined the consignment after obtaining a court order in order to verify the consignment status in accordance with the Section 153 of the EACCM Act of 2004. It was in exercise of their mandate to impound the consignment since it contained fish which contravened the Fish Act. The said fish was measured to be less than 20 inches which is required in Uganda.

## *Analysis*

Sections 18 and 19 of the East African Community Customs Management Act of 2004 specify prohibited and restricted goods in Part A and Part B of the 2nd schedule to the Act to be imported to the Partner States being goods expressly prohibited and restricted under written law in the Partner States.

The law in Uganda, under section 30(c) of the Fish Act provides; *Any authorized officer may-*

*(c) seize any fish, dried fish or fish product which he or she reasonably believes to have been caught or to be possessed in contravention of this Act or any rules made under this Act. Any such fish, dried fish or fish product so seized shall be sold in such manner as the authorized officer may think fit and the proceeds of the sale shall be paid into court*

Section 27 of the Fish Act, is restricted to Fish within Ugandan water bodies.

The plaintiffs claim that their consignment of the alleged fish was from Kenya and therefore it ought not to have been impounded in Uganda since it was in transit to DRC and was declared at Busia border-Uganda. The PW1 testified that the alleged fish was from Kenya and was declared at the border vide entry Number D7782 and D7736 as goods exported by him to Bugume Kalulu in DRC and URA seals were accordingly fixed. For safety and further monitoring of the consignment.

The plaintiffs' main contention and defence was that the goods in the consignment was fish outside Uganda and the Fish Act of Uganda was inapplicable.

The Fisheries Department agents on 3rd day of October, 2021 impounded the consignment by Fish Protection Unit at Bwera-Mpondwe customs in Mpondwe-Lubiriha Town Council, Kasese District on allegation that they contained immature fish from the Republic of Uganda water bodies. This was indeed confirmed by Ministry of Agriculture, Animal Industry and Fisheries that their fisheries officers impounded said fish in the above motor vehicles for the purpose of inspecting them to ensure that they are not carrying unauthorized goods.

The drivers of the said trucks vanished and the trucks were driven back to Entebbe-Fisheries Department and were to be inspected to ensure that the consignment does not contain any immature fish. URA was required to have the seals removed from the containers which they declined in absence of a court. On 13th October 2021, a court order was issued by the Magistrate's court of Entebbe at Entebbe to officials of the Directorate of Fisheries Resources, ordering among others that the motor vehicles be opened and inspected.

There was another matter filed in court challenging the said order of court and the same was brought by Monday Ali & Violet Adhiambo Ooko v Mugabi Innocent Miscellaneous Application No. 130 of 2021 seeking to set aside the ex parte ruling and Orders of 13th October 2021. The application was dismissed with costs.

The lower court in Miscellaneous Application No. 130 of 2021(Her Worship Sikhoya Naome established the allegations of whether the fish was immature and noted in her ruling as follows;

*"However while at locus that was conducted in presence of counsel for the applicants and respondents together with their legal counsel, Counsel for the applicant was privileged to select a truck of his choice to take a sample the content was fish and it was proper size of fish according to the law which he did pick a truck and a bundle that was opened and photos were taken and are on court file. It was ascertained when the trucks were opened that the fish consignment in the trucks included the Nile Tilapia which was according to the law supposed to measure atleast 11inches which was not the case as most of it in the truck was averaging 6 inches and Nile Perch meant to average 20 inches was averaging 8- 10 inches"*

It was established in the testimony of 2nd defendant that the consignment of fish was only endemic to Ugandan waters, which was in contravention of the Fish (Fishing) Rules SI No. 33/2010 as they are were immature fish.

The 3rd defendant in her testimony testified that the drivers of the trucks abandoned the trucks at Mpondwe and ran away with important documentation for verification at the border point and the trucks had to be driven to Entebbe for safe custody and management. The purported owners from Kenya came to Uganda and these included Oketh Eric and Mande Ali claiming ownership of the fish. Another meeting was held between the Minister and the Kenyan delegation who were accompanied by two men from the Kenyan High Commission namely Richard Motwota and Rowo Kenneth, but they failed to produce any documentation to prove ownership of the fish and they stormed out of the meeting. The inspection was done in presence of the press and it was discovered the fish was immature.

It is clear that the evidence on record shows that the fish which was impounded was immature and was liable to be impounded for breaching the Fish Act which bars dealing in immature fish. The respondents and other fisheries officers acted on intelligence and it was indeed confirmed that the consignment had contraband fish.

The main issue for the court is to determine between the plaintiffs and the Defendants who is telling the truth as to whether the fish was immature or not? And it must be ascertained from the evaluation of evidence of both parties.

In *Ahmed Adel Abdallah v Sheikh Hamad Isa and Ali Khalifa (2019) EWHC 27*, the court laid down the guidance on how the court should approach acute conflicts of evidence among witnesses on the events that occurred. The Court noted in *para 20* that the guidance applied to both cases of fraud and cases where fraud is not alleged. Thus;

*There were acute conflicts of evidence between the witnesses on numerous aspects of the events which occurred. It was common ground that the approach to be taken in resolving these conflicts was that commended by Robert Goff LJ in Armagas Ltd v Mundoga SA (The Ocean Frost) (1985) 1 Lloyd's Report. 1.57;*

*Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses always to test their* *veracity by reference to the objective facts proved independent of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents to the witnesses' motives and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth.*

The evidence of the plaintiff was so incredible and the court could not believe it since it contained several contradictions and inconsistencies. I have believed the defence evidence since it is consistent, coherent and in totality it realistically supports the finding that the plaintiffs' consignment had immature fish. This court is bound to put the entire evidence on the imaginary scale of justice to determine in whose favour the balance tilts.

The plaintiffs' evidence contained several contradictions and inconsistencies which prove the untruthfulness of the plaintiffs and their witnesses. It is settled law that grave inconsistencies and contradictions unless satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected. Minor ones unless they point to deliberate untruthfulness will be ignored. See *Ojara Samuel & 6 Ors v Bwomi Sezi HCCA No. 02 of 2016.*

The contract for the sale of the impounded fish was stated to be valued at 606,121,200/= Kenya Shillings which translates to 17,300,000,000/= which is quite incredible. The said contract was signed with a person who is illiterate atleast when she appeared in court should not read or understand English. She only knew some French language and Lukonzo of DRC side.

The impounded fish was claimed by several persons and right person was not known until the filing of the suit, when the proper documentation was produced in court. The plaintiffs claimed to have appointed Monday Ali as their agent but there is no power of attorney or letter appointing him an agent. Monday filed matters in court as the owner of the goods/consignment and when the documents of title were demanded from them, no one would produce the same.

The conduct of the drivers of the trucks is equally inconsistent with innocence, since they disappeared with all the documents of title issued by URA at customs. They abandoned the trucks at the border at Mpondwe which is unexplained to date why they would abandon trucks which allegedly contained hard cash of 800,000,000/= which was to be handed to the plaintiffs allegedly paid by Biira.

The alleged fish dealers never had any fishing permits authorizing them to deal in fish and it was Monday Ali who attached his fishing permit which was attached to the customs documents and yet the consignment was in the names of the plaintiffs. The other persons who appeared as the owner of the consignment of fish at the Ministry of Agriculture, Animal Industry and Fisheries are Oketh Eric and Monday Ali.

The plaintiffs claimed that the fish was from Lake Turkana and this information was only availed in cross-examination. The pleadings of the plaintiff never mentioned the source of fish being lake Turkana but rather it was a technical denial that the fish originated from Kenya.

A piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessarily when they are minor discrepancies in details between them. Contradiction between two pieces of evidence goes to the essentiality of something being and not being the same. In this case the contradictions in the evidence is fatal and points to a deliberate falsehood and credibility of witnesses.

The sum effect of the court's evaluation of the evidence with the contradictions and inconsistencies is to render the evidence of the plaintiff quite unbelievable and ought to be rejected. The defence evidence is unassailable that the consignment contained immature fish and it was lawfully impounded and disposed of under a court of Entebbe Chief Magistrates Court.

## This issue fails. *Whether 800,000,000/= was stolen from the impounded trucks?*

The plaintiff also sought to recover the hard cash of 800,000,000/= which the plaintiffs claimed was given to the drivers of the impounded trucks and they left the money in the trucks which they had abandoned at Mpondwe border post.

The alleged money was paid by Biira and it was paid to Monday Ali being payment for the goods which she had not yet received. The paid money was then received and hidden in the impounded trucks. There is no acknowledgment of receipt of the money for this huge sum of money and it remained a casual transaction. He claims to have put 200,000,000/= in the four trucks which were carrying the consignment to Congo.

The drivers of the trucks refused to hand over the keys of the vehicles and they refused to truck to Entebbe. The money was allegedly received on 5th October 2021 and was kept in the trucks. But the evidence on record shows that the trucks were impounded on 3rd October 2021 and they remained guarded at Mpondwe boarder by the UPDF. It is not clear how the truck drivers could keep money-(200,000,000/=) in the trucks which were under tight security pending instructions to verify the consignment.

## In addition, *Section 10(1)(a) of the Anti-Money Laundering Act, 2013* provides for *Declaration to Customs at the Border* that;

*"A person entering or leaving the territory of Uganda and carrying cash or bearer negotiable instruments exceeding one thousand five hundred currency points or the equivalent value in a foreign currency…… shall declare that amount to the Uganda Revenue Authority in the manner prescribed by the Minister by regulations"*

The plaintiffs did not show whether this money was ever declared at the customs since the person who alleged surrendered or paid this money came from DRC to effect payment in Uganda. The whole story of payment for the consignment of goods(fish) at 800,000,000/= is quite unbelievable and sounded like a movie and how it was kept in the 4 trucks in amounts of 200,000,000/= per truck in quite incredible.

## *Whether the suit was frivolous and vexatious/an abuse of court process?*

The plaintiffs' claims are frivolous and vexatious and wholly intended to 'hit back' and scandalize the defendants and specifically at 1st defendant, Hon. Hellen Odoa as the Minister of State for Fisheries, 2 nd defendant, Capt Mugogo Musa a Fisheries Officer-(UPDF Officer-Commandant of the Fisheries Protection Unit), 3 rd defendant, Joyce Ikwaput Nyeko-former Director of Fisheries Resources in the Ministry of Agriculture, Animal Industry and Fisheries) and 4 th defendant, Mugabi Innocent- Fisheries Inspector in the Directorate of Fisheries Resources, Ministry of Agriculture, Animal Industry and Fisheries.

The plaintiffs case is also baseless in law and an abuse of the court's process or is otherwise fundamentally improper for being frivolous and vexatious. A court will strike out a claim when it is manifest that there is an answer immediately destructive of whatever claim to relief sought or made. See *Ndungo Seti & 2 Others v Sekiziyivu Sammy Jones & Another HCCS NO. 286 of 2011*

The plaintiffs' case is frivolous and vexatious as submitted by the defence counsel. "Frivolous" connotes the absence of seriousness or the lack of validity or legitimacy. A frivolous pleading would also be vexatious in that its effect would be counterproductive. See *Re Singapore Souvenir Industry (Pte) Ltd [1985-1986] SLR(R) 161.*

Secondly, the case is also "Vexatious" i.e it is oppressive to the opposing party and it obstructs the court from gaining a full understanding of the issues and a party acts with an ulterior motive. The action is vexatious if the party bring it is not acting *bona fide* and merely wishes to annoy or embarrass the opponent or when it is not calculated to lead to any practical result. *See Lehman Brothers Special Financing Inc v Hartadi Angkosubroto [1998] 3 SLR(R) 664: Goh Koon Suan v Heng Gek Kiau [1990] SLR(R) 750*

As noted above, this action was deliberately brought against the defendants who are agents of government (employees) or who were acting in the course of their employment in order to vex them. There was nothing personal about their conduct and indeed said fish was disposed of in a manner provided Fish Act by way of the court order. The plaintiffs were trying to hit back at the defendants for impounding their consignment in the execution of their duties.

The suit was basically an intentional or even reckless misuse of the court's process in order to escalate a futile exercise and they engaged in concocting evidence through a one Biira whose identity at cross examination was quite different. There was no good faith in the conduct of litigation which is consistent with the interests of justice.

The pursuit of this case was not for a legitimate pursuit of a remedy since the plaintiffs did not have any iota of evidence to show that the fish was not immature or was not from within Ugandan waters and did not have any documents-fishing permits/licence to support their claims of being authorized to deal in such huge volumes of fish worth 2.5 billion shillings. The plaintiffs were aware that the fish had been given out under a court process by the officers of the fisheries department upon a court order.

This suit is dismissed with costs to the defendants.

I so order.

*SSEKAANA MUSA JUDGE 11th October 2024*