Tumwesigye v Nyakake (Civil Appeal 25 of 2023) [2024] UGHC 852 (29 August 2024)

# **THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. 025 OF 2023 (ARISING FROM KJJ-008-CV-CS-015 OF 2014)**

**TUMWESIGYE LAWRENCE ::::::::::::::::::::::::::: APPELLANT**

**VERSUS**

**NYAKAKE HARIRIET :::::::::::::::::::::: RESPONDENT**

#### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

This is an appeal against the judgment and orders of H/W Taremwa Martha, the Magistrate Grade 1 of the Chief Magistrate's Court of Kyenjojo at Kyegegwa, delivered on the 1st of June 2023 wherein she dismissed the appellant's claim of malicious prosecution and awarded costs to the respondent.

### **Background**

The appellant filed Civil Suit No. 015 of 2014 against the respondent for a claim of malicious prosecution, special and general damages, and costs of the suit. The appellant's claim is that the respondent initiated criminal proceedings against him for a charge of grievous harm vide Criminal Case No 594 of 2010 in the Chief Magistrate's Court of Kyenjojo at Kyegegwa. However, the said charges were later dismissed, and the appellant was acquitted. That the said charges were initiated with malice and without probable cause which resulted in loss to the appellant.

In her written statement of defence, the appellant refuted the allegations and contended that on the 6th of December 2010, she was assaulted by the appellant at her residence, an incident she promptly reported to the police. Subsequently, the police arrested the appellant, who was then formally charged and subjected to a trial.

In her judgement, delivered on the 1st of June 2023, the learned trial magistrate dismissed the appellant's claim with costs awarded to the respondent.

Being dissatisfied with the decision of the learned trial magistrate, the appellant appealed to this court on the following grounds:

- 1. The learned trial magistrate erred in law and fact when she dismissed the appellant's suit against the respondent based on the fact that the respondent was only a witness of the state. - 2. The learned trial magistrate erred in law and fact when she dismissed the appellant's suit against the respondent that as much as the appellant had suffered damages, they could not be visited on the respondent. - 3. The learned trial magistrate erred in law and fact when she awarded costs to the respondent.

## **Representation and Hearing**

Ms. Kesiime Mariam represented the appellants whereas Mr. Cosma A. Kateeba represented the respondent. The hearing proceeded by way of written submissions. Both counsel filed written submissions which I have considered in this judgement.

## **Duty of the First Appellate Court**

This being a first appeal, this court is under a duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inferences of fact, to reach its independent conclusion as to whether the decision of the trial court can be sustained. This duty is well explained in the case of *Father Nanensio Begumisa and three others v. Eric Tiberaga SCCA 17of 2000* where the court held thus:

> *"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions***."**

It is not the function of a first appellate court to merely scrutinize the evidence to see if there is some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the trial court's findings should be supported. In doing so, the court should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses *(see: Peters v. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellant's grounds of appeal.

### **Consideration by Court**

**Ground 1: The learned trial magistrate erred in law and fact when she dismissed the appellant's suit against the respondent based on the fact that the respondent was only a witness of the state.**

## **Submissions by Counsel for the Appellant on Ground 1**

In arguing ground 1 of the appeal, counsel for the appellant argued that the evidence on record showed that the respondent was the complainant in Criminal Case No. 594 of 2010 against the appellant and that the trial magistrate had acquitted the appellant on the basis that the prosecution had failed to prove its case.

Counsel for the appellant referred this court to the case of *Mbowa v. East Mengo Administration [1972] EA 352 at page 354* which sets out the key ingredients of malicious prosecution.

Counsel argued that the evidence on record showed that the respondent was instrumental in prosecuting the appellant as it was the respondent who reported the case to the L. C. 1 chairperson and then to Kyegegwa police station upon which police officers arrested the appellant and preferred criminal charges against him.

Counsel argued that although the state did the prosecution, the respondent was the complainant and therefore liable for malicious prosecution.

### **Submissions by Counsel for the Respondent on Ground 1**

Counsel for the respondent submitted that in as much as it is true that the respondent was a complainant, he did not make the final decision to institute criminal prosecution against the appellant.

Counsel for the respondent further argued that the respondent merely complained about the assault on her and the police after thorough investigations instituted criminal proceedings against the appellant after the same had been sanctioned by the DPP's office. Counsel argued that the decision to commence proceedings against the appellant was an independent decision by the prosecutorial agency over which the respondent has no control.

Counsel also for the respondent argued that to succeed in an action of malicious prosecution, all the ingredients have to be proved, and the appellant did not discharge that burden.

Counsel for the respondent also submitted that the evidence on record showed that there was reasonable cause to prosecute the appellant and that's why a prima facie case was established against him. Counsel argued that the main reason for the acquittal was that the prosecution had failed to call the doctor who examined the respondent to produce medical evidence of the injuries suffered by the respondent.

Counsel for the respondent referred this court to the case of *Uganda Revenue Authority v. Murisa Amos CACA No. 128 of 2018* where it was held that where the court of law has determined that an accused has a case to answer, a civil suit of malicious prosecution can not be sustained thereafter.

Counsel also argued that the appellant had not provided cogent evidence to show that the case had been instituted with an improper motive since the respondent had been attacked and injured by the appellant.

## **Court's Consideration of Ground 1**

The Court of Appeal in the case of *Dr. Bishop N. Okille Vs. Mesusera Eliot and Another Civil Appeal No. 29 of 1997* quoting with approval the case of *Mbowa Vs. East Mengo Administration (supra)* restated the ingredients constituting the tort of malicious prosecution to include the following:

- i) The criminal proceedings must have been instituted by the defendant. - ii) The defendant must have acted without reasonable or probable cause. - iii)The defendant must have acted maliciously. - iv) The criminal proceedings must have been terminated in the plaintiff's favour.

For a case of malicious prosecution to be sustained, each of these ingredients must be specifically proved, on a balance of probability.

In the instant case, it is not in contention that the appellant was acquitted of the criminal charges of grievous harm C/S 219 of the then Criminal Code Act vide *Criminal Case No. 594 of 2020, Uganda v. Tumwesigye Lawrence* before the Chief Magistrate's Court of Kyenjojo at Kyegegwa. Therefore, from the evidence on record, the appellant proved the last ingredient.

What is under contention is whether the respondent was merely a state witness, or she is the one who initiated criminal proceedings against the appellant, and if so, whether she did so with probable cause and based on facts she genuinely believed to be true. I will now proceed to determine the merits of each of the three contested elements of malicious prosecution based on the record of the lower court.

On whether the criminal proceedings against the appellant were initiated by the respondent or she was merely a state witness, the evidence on record shows that on the 6th of December 2010, the respondent reported to the police that she had been assaulted by the appellant, and upon investigations, police preferred charges of grievous harm against the appellant, who was later tried before the Chief Magistrate's Court of Kyenjojo at Kyegegwa.

In finding that the criminal proceedings were instituted by the by the Director of Public Prosecutions (DPP) and not the respondent, the learned trial magistrate held that:

> *"In the instant case, the defendant who is the complainant in Criminal Case No. 594 of 2010 against the plaintiff only testifies as prosecution's witness number one. The plaintiff herein does not prove that the criminal proceedings were by private prosecution, and thus cannot hold the defendant liable for any kind of prosecution whether malicious or not."*

I respectfully disagree with the findings of the trial magistrate on this ingredient. It is trite law that liability for malicious prosecution does not fall on one who investigates or prosecutes but on the person who instigates the criminal proceedings. This was enunciated in the case of *Dr. Bishop N. Okille Vs. Mesusera Eliot and Another (supra)* where the court of appeal held thus:

# *"In a prosecution in the name of the state, the person liable is therefore the complainant in whose instigation the proceedings are due."*

In the instant case, having made a finding that the respondent was the complainant in *Criminal Case No. 594 of 2010*, the trial magistrate did not properly apply the law to the facts in concluding that it was the DPP that instituted the criminal proceedings against the appellant. This finding fails to take cognizance of the criminal procedural dynamics, where the DPP acts on complaints brought forth by individuals or entities, such as the respondent in this case.

It is imperative to delineate the contours of liability in instances of malicious prosecution. In my view, the essence of such a cause of action rests upon the individual who sets the wheels of justice in motion without just cause. It is of no consequence whether these proceedings are brought into the courtroom through private means or under the auspices of the DPP. The DPP, in its capacity, serves merely as the conduit through which the will of the complainant is given voice in court. Thus, the crux of liability does not shift with the method of initiation of proceedings. It remains, steadfastly, with the originator of the complaint, who must bear the weight of their actions should they be found to have acted with malice or without

### probable cause. Therefore, it is the finding of this court that it is the respondent who instituted the criminal proceedings against the appellant.

The next ingredient to determine is whether, in instituting criminal proceedings against the appellant, the respondent acted without reasonable or probable cause. It was held in *Aliganyira Betty v. Rwenzori Diocese Savings and Credit Cooperative Society Ltd HCCS No. 12 Of 2020* case that this ingredient is answered in negative if it is proved that there are facts which, on reasonable grounds, the defendant genuinely believes that the criminal proceedings are justified.

In the case of *Bosco Wabendo and 5 Others v. Issa Namara HCCA No. 21 of 1999* citing with the approval the case of *Edirisa Semakula v. Attorney General [1976] HCB 171*, the court defined reasonable or probable cause as:

> *"An honest belief in the guilt of the accused upon full conviction, founded on reasonable grounds, of the existence of the state of circumstances which, assuming them to be true, would reasonably lead to any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed."*

In the case of *Uganda Revenue Authority Vs. Murisa Amos (Supra),* the Court of Appeal observed that:

> *"Where a court of law has determined that an accused person has a case to answer, the prosecution having adduced sufficient evidence as to require him/her to be put*

## *on his defence a civil suit for malicious prosecution cannot be sustained thereafter."*

In finding that the criminal case against the appellant was instituted with probable cause, the learned trial magistrate held that:

> *"It is also worth noting that in the proceedings from the criminal case, the court ruled that a prima facie case was established against the thus the proceedings were instituted with reasonable cause against the plaintiff."*

I agree with the reasoning of the learned trial judge on this ingredient. The finding of the learned trial magistrate on whether the criminal proceedings were preferred against the appellant with probable cause is in sync with the legal principles on the action of malicious prosecution as cited above.

It is, therefore, immaterial that the appellant was acquitted. The fact that the trial court found a prima facie case against the appellant and the appellant was put on a defence is a testament that the defendant had reasonable or probable cause in instituting criminal proceedings against the appellant.

The third ingredient for this court to determine is whether the defendant acted maliciously in initiating the criminal proceedings against the plaintiff. This question is answered in the affirmative if it proved that, in instituting criminal proceedings, the defendant acted with an improper and wrongful motive. The defendant must have had the intent to use the legal process in question for some motive other than its legally appointed and appropriate purpose *(see: Aliganyira Betty v. Rwenzori Diocese Savings and Credit Cooperative Society Ltd (supra)).*

Decision of Hon. Justice Vincent Emmy Mugabo Page **9** of **14**

In the instant case, the respondent, who testified as DW1, told the court that on the 6th of December 2010, while she was resting in her house, she was alerted by her husband's alarm after being attacked by the appellant. Upon exiting her house, she witnessed the appellant, armed with a panga, pursuing her husband. The appellant then turned on the respondent, attacking her with the panga and injuring her left ear, accusing them of unlawfully cultivating his land.

DW2 further informed the court that upon hearing the alarm from the respondent's home, he went to assist and discovered the respondent bleeding from a cut on her left ear, presumably inflicted by a sharp object. This account was corroborated by DW3, the respondent's husband, who recounted that on the fateful day, the appellant arrived at their residence, armed with a panga and voicing complaints about a land dispute. Fearing for his safety, DW3 fled towards the home of the village chairperson. During his escape, he heard the respondent's cries, and when he turned to see, he noticed that she was bleeding from a cut on her ear.

The appellant, in his testimony, admitted to a physical altercation with the respondent's husband, DW2. One of the appellant's witnesses, PW3, Hope Gorreti, testified to witnessing a scuffle involving the appellant, DW2, and DW3. According to the parties' witnesses, this scuffle occurred at or near the respondent's home.

Malice, in the context of malicious prosecution, refers to the intent to use the legal process for purposes other than its legally designated and appropriate objectives. The plaintiff can demonstrate malice by showing, for instance, that the prosecution did not genuinely believe in the merits of the case they were presenting, that there was no evidence upon which a reasonable tribunal could convict, or that the prosecution was initiated due to an improper motive, and then proving that motive. In other words, the plaintiff must show that the prosecution was motivated not by desire to achieve justice, but for some other reason. *(see: Gwagilo v. Attorney General [2002] 2 EA 381); and Godfrey Mbowa v. Attorney General Civil Suit No. 164 of 2017).*

In the case of *Godfrey Mbowa v. Attorney General (supra),* the court held that:

> *"Malice can be established through enmity, retaliation, haste, omission to make due and proper enquiries, recklessness, harassment, personal spite, sinister motive etc. are some of the items which are relied upon for proving the malice."*

In the instant case, although there were land disputes between the appellant and the respondent's husband, there is evidence that there was a scuffle involving the appellant, the respondent, the respondent's husband and DW2. This scuffle took place at the appellant's home or nearby and both parties reported the matter to the police, which did investigations.

Based on the evidence on record, the appellant did not discharge his burden to demonstrate to the trial court that the respondent had a motive other than that of pursuing justice when she reported him to the police. Therefore, it is my finding that the criminal proceedings against the appellant were instituted without malice.

In the premises, since the evidence on record does not prove all the ingredients of malicious prosecution, on the balance of probability, to the satisfaction of this court, I find no reason to fault the findings of the trial magistrate. Therefore ground 1 of the appeal is found in negative and must fail.

**Ground 2: The learned trial magistrate erred in law and fact when she dismissed the appellant's suit against the respondent that as much as the appellant had suffered damages, they could not be visited on the respondent.**

Having found ground 1 to be without merit, I deemed it unnecessary to expend the court's time on determining ground 2. The failure of the appellant to establish a case of malicious prosecution against the respondent renders any inquiry into the respondent's liability for damages, potentially arising from the criminal proceedings initiated against him, a purely academic exercise. Therefore, ground 2 must fail together with ground 1.

## **Ground 3: The learned trial magistrate erred in law and fact when she awarded costs to the respondent.**

In arguing ground 3, counsel for the appellant submitted that the learned trial magistrate awarded costs to the respondent relying on section 27 of the Civil Procedure Act Cap. 71 (now Cap. 282) without exercising his discretion judiciously. Counsel argued that where the discretion of the court is not exercised judiciously, like in the instant case, then the appellate court can interfere with the decision arising from that discretion.

Counsel argued that when the trial magistrate awarded costs to the respondent, she did not state the quantum of the assessment based on the nature of the claim, the value of the subject matter and the level of inconvenience, if any, suffered by the respondent as laid out in the case of *Attorney General v. A. K. P. M Lutaaya SCCA No. 16 of 2007*. Counsel submitted that the award of costs to the respondent was wholly without any legal basis and therefore the award was in error.

Counsel for the respondent, on the other hand, argued that costs follow the event and that the award of costs is at the discretion of the court and the trial magistrate exercised that discretion judiciously per section 27 of the Civil Procedure Act since the respondent was a successful party.

## **Court's Consideration of Ground 3**

It is trite law that costs follow event unless the court orders otherwise (see section 27 of the Civil Procedure Act). It is also trite that a successful party can only be denied costs if it is proved that but for his conduct the action would not have been brought.

In the case of *Impressa Infortunato Federice v. Irene Nabwire (Suing By her next Friend Dr. Julius Wambette SCCA No. 03 of 2000*, Order, JSC, as he then was, held that:

> *"In my view, the effect of the provisions of section 27 in question of the Civil Procedure Act is that the judge or court dealing with the issue of costs in any suit, action, cause or matter has absolute discretion to determine by whom and to what extent such costs are to be paid. Of course, like all judicial discretions, the discretion on costs must be exercised judiciously. How a court or a judge exercises such discretion depends on the facts of each case…The factors which determine the exercise of discretion in favour of one party and against another in a case do not necessarily apply to any other case. If there were mathematical formula, it would no longer be discretion."*

In the instant case, the appellant filed a case of malicious prosecution against the respondent, which was dismissed. Upon careful consideration, it is evident that in awarding costs to the respondent, the learned trial magistrate exercised her discretion judiciously and in accordance with the law. Her decision reflects a proper application of legal principles governing the award of costs, recognizing that such awards are typically granted to the prevailing party as a means to compensate for the expenses incurred in prosecuting or defending a legal action.

With all due respect to counsel for the appellant, the principles outlined in the case of *Attorney General v. A. K. P. M Lutaaya (supra)* are relevant to the award of damages, not to costs, which is the subject matter of this ground of appeal. Consequently, I find those principles to be inapplicable in this instance. Therefore, Ground 3 is also found to be without merit and must, likewise, fail.

Resultantly, I find no reason to fault the trial court's decision and orders. It is my finding that this appeal is wholly without merit, and it is hereby dismissed with costs to the respondent.

It is so ordered.

Dated at Fort Portal this 29th day of August 2024.

**Vincent Emmy Mugabo Judge**