Sankara v Ngabo and Another (Civil Appeal 39 of 1993) [1994] UGSC 51 (21 November 1994)

KATENDE SSEN**THE & REPUBLIC OF UGANDA** LAW LIBRARY

Accession No

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#### INCITHE SUPREME COURT OF UGANDA AT **MENGO.** Code KAI/

COR: MANYINDO, D. C. J., ODOKI J. S. C., & PLATT J. S. C.

CIVIL APPEAL 39/1993

SARAH KANABQ .. APPELLANT **...........** $\mathcal{L} \mathcal{L} \mathcal{L}$

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THE EDITOR IN CHIEF-NGABO NEWS PAPER ..... 1ST RESPONDENT THE NGABO NEWS PAPER .................... 2ND **RESPONDENT** OMUGAVE KINENE NYUMBA .................. RESPONDENT $3RD$ THE SHIELD PUBLICATION LTD .......... 4TH **RESPONDENT**

> (Appeal against the judgment of Kityo, J. in HCCS No. 121 of 1991 dated 13.4.1994

JUDGEMENT OF MANYINDO, D. C. J.

This is an appeal against the quantum of damages only. The appellant successfully sued the respondents in the High Court for general damages for defamation. She was awarded Shs. 75,000/= general damages plus cots of the suit.

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The respondents published in the " $\overline{N}$ gabo" News Paper Vol. No. 1179 of Wednesday 28th March 1990, and Vol. No. 337 of Saturday of Baturday 31st March 1990, articles of defamatory of the appellant. They depicted her as a witch doctor, a thief and a hardcore criminal who had planned and executed the murder of her wealthy husband so that she could come into his riches. The respondents put out the defences of justification, qualified privilege and fair comment.

The trial Judge found that the publication were false and defamatory of the appellant. He thus rejected the defence of justification and fair comment. He did not deal with the defence of qualified privilege but then the respondents have not crossappealed on the point.

The trial Judge was requested to award the appellant Shs. 5 million general damages. The High Court decisions in: (1) Rev. Father John Neudegger vs. The Telecast News Paper and 2 others H. C. C. S. No. 754 of 1988 - 1990 HCB 155), (2) Kibedi vs. FAD Publications H. C. C. S. No. 869 of 1987 (unreported and Abu Mayanja vs. Mulengera News Paper, H. C. C. S. No. 459 of 1990 (unreported) were cited.

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Rev. Father John Neudegger, a catholic priest at Tororo, was falsely accused of amassing wealth through misuse of church funds. He was awarded Shs. 3 million general damages. Mr. Wanume Kibedi, a prominent Lawyer and former Attorney General of Uganda was falsely accused of having connived with Idi Amin in the murder of a former Chief Justice of Uganda. He was awarded Shs. 4.5 million general damages and a veteran politician and cabinet Minister Abu Mayanja who was falsely accused of having illegally pocketed gate collections at Nakivubo Stadium was awarded 9 million Shillings general damages.

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The trial Judge considered those three cases but decided that they were not relevant to the case before him. This is what he said. $\mathbf{1}$

> "On general damages I have considered the several authorities in the decided cases drawn to my attention where different awards were made by this Court, in the past, to the plaintiffs oí different successful categories i.e rev. Father John Neudegger's case; Mr. Wanume Kibedi's case and Mr. Abu Mayanja's case. In comparison to the present case, the plaintiff in this case does not<br>rank in the status, as high as any of the successful plaintiffs in each of the above mentioned cases.

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日本に、一号を記事業を

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I therefore, consider an award of the sum of Shs. $75,000/$ = as general damages, for the defamatory publication and libel to be an adequate award and I do hereby award the same."

The appellant's complaint in this Court is that it was wrong for the trial Judge to award the appellant very low damages simply because she belonged to a low social class or status. The trial Judge should have taken into account the fact that she was a successful business woman, happily married to her now deceased husband and that she is now shunned by the public as a murderer of her own husband.

On the other hand Mr. Hudson Musoke who represented the respondents supported the award of Shs. 75,000/=: he argued that the appellant deserved no more than that since she had not impressed the trial Judge who had put her down as a person of low status.

As this Court pointed out in: Byabalema & 2 others vs. Uganda Transport Co. (1975) Ltd., Civil Appeal No. 10 of 1993 (unreported), an appellate Court may only interfere with an award of damages when the award is so inordinately high or low as to

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represent an entirely erroneous estimate. It must be shown that the trial Judge applied a wrong principle or that he misapprehended the evidence in some material respect, and so arrived at a wrong figure. Also see: Ilanga Vs. Manyoka (1967) KA 705 and Associated Architects vs. Nazziwa, Civil Appeal No. 5 of 1981, Court of Appeal for Uganda (unreported).

In the instant case there was evidence that she was a business woman but there was no evidence led by the appellant to show that she was successful business woman. However, there was evidence that she is now shunned by her friends and business associates. With respect, I think that the trial Judge was wrong ' to condemn her to low general damages solely on account of her social status. I do not think that status alone is enough. It is necessary to combine status with the gravity or seriousness of the allegations made against a plaintiff. Anyone who falsely accuses another of a heinous crime such as murder should be condemned heavily in damages. In my opinion once an ordinary man or woman is defamed seriously and is shunned by the public then it does not matter whether he or she is of high or low status. $\frac{1}{1}$

In this case the appellant's business was affected, her friends shunned her - all because of the false allegations against her; this and not her status called for higher damages. It is remarkable that in Lubanga Kene vs. Focus News paper and 3 others H. C. C. S. No. 262 of 1988, (unreported), where the allegation against the plaintiff was that in his capacity as Manager of a certain corporation he had transferred an employee of the corporation from Jinja on tribal grounds and that the transfer had adversely affected the Corporation's plant at Jinja, the same trial Judge awarded the plaintiff Shs. 2 million as general damages. It seems to me that the allegation in that case was not as serious as the allegations here.

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Finally, there is also the fact that the respondents never vacated the the allegations made against the appellant. They never offered an apology to her. Instead they sought to justify them but failed to do so miserably. It is trite that where the defence of justification fails then high damages may be awarded on that account. Of course the offer of an apology is not a defence but it does mitigate the damages.

In view of the foregoing I would allow this appeal, set aside the award by the High Court and substitute an award of Shs. 2,250,060 general damages plus costs. The decretal sum would carry interest at the Court rate from the date of judgment.

Dated at Mengo this ......21st.....day of ... November, 1994.

S. T. MANYINDO, DEPUTY CHIEF JUSTICE.

I CERTIFY THAT THIS IS THE TRUE COPY OF THE ORIGINAL.

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E. K. TURYANUBONA.

DEPUTY REGISTRAR, THE SUPREME COURT.

#### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT MENGO

COR: MANYINDO, D. C. J. ODOKI, J. S. C, & PLATT, J. S. C. CIVIL APPEAL 39/1993 (OR: CASE KAMPALA 39/1991)

SARAH KANABO. $\ldots$ ... APPELLANT

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| THE EDITOR IN CHIEF - NGABO NEWS PAPER 1ST RESPONDENT | | |--------------------------------------------------------|--| | THE NGABO NEWS PAPER 2ND RESPONDENT | | | OMUGAVE KINENE NYUMBA | | | THE SHIELD PUBLICATIONS LTD 4TH RESPONDENT | |

JUDGEMENT OF PLATT, J. S. C.

I agree.

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Delivered this 21st day of November, 1994.

#### H. G. PLATT,

#### JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS THE TRUE COPY OF THE ORIGINAL.

$E. K.$ TURYAMUBONA, DEBUTY REGISTRAR, THE SUPREME COURT.

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT MENGO

COR: MANYINDO, D. C. J. ODOKI, J. S. C, & PLATT, J. S. C. CIVIL APPEAL 39/1993 (OR: CASE RAMPALA 39/1991)

APPELLANT SARAH KANABO. $\cdots$

#### $-$ VERSUS $-$

| THE EDITOR IN CHIEF - NGABO NEWS PAPER 1ST RESPONDENT | | |--------------------------------------------------------|--| | THE NGABO NEWS PAPER 2ND RESPONDENT | | | OMUGAVE KINENE NYUMBA 3RD RESPONDENT | | | THE SHIELD PUBLICATIONS LTD | |

JUDGEMENT OF ODOKI, J. S. C.

individual in a man

where it was a contract of the

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I have had the advantage of reading in draft the judgment of Manyindo, D. C. J., and I agree that this appeal must be allowed. I concur in the orders proposed by him.

Dated at Mengo this 21st day of Nov., 1994

B. J. ODOKI,

JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS THE TRUE COPY OF THE ORIGINAL.

TURYAMUBONA $\overline{K}$ $\cdot$ $\overline{K}$ DEPUTY SUPREME COURT. THE REGISTRAR,