Lutaaya v Attorney General (Civil Appeal No. 25 of 2014)
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Holding
The Court of Appeal substantially allowed the appeal. While the trial judge was procedurally correct to expunge an affidavit where the deponent failed to attend for cross-examination, the judge erred by doing so without fully investigating witness protection concerns. The deponent was both a victim and witness of torture, triggering the State's duty under section 21 of the Prevention and Prohibition of Torture Act 2012 to protect him. Striking out this crucial examination-in-chief amounted to a material irregularity occasioning a miscarriage of justice. The Court set aside the ruling and ordered a retrial, recommending thorough investigation of the torture allegations and protection of witnesses.
Facts
On 21 November 2007, the appellant's husband Saidi Lutaaya was allegedly abducted from the Old Taxi Park in Kampala by men in plain clothes and taken to the Joint Anti-Terrorism Task Force (JATT) offices in Kololo, where he was allegedly tortured. Sabiiti Kateregga, who claimed to have been detained and tortured at the same offices, swore an affidavit stating he saw Lutaaya being taken in, heard him crying for mercy, and was later asked to help carry his bleeding body onto a pickup. On 23 November 2007 the appellant learnt by radio announcement that her husband's body was at Mulago mortuary; a death certificate was issued over a year later. The appellant, a widow with five orphaned children, brought a miscellaneous application seeking compensation from the respondent. At trial, the judge expunged Kateregga's affidavit because the deponent did not attend for cross-examination, citing safety concerns raised by counsel, and dismissed the application for failure to prove the death and the State's responsibility.
Issues
- Whether the trial judge erred in expunging the affidavit of a deponent who did not avail himself for cross-examination, without considering witness protection concerns.
- Whether a witness who is both a victim of and witness to torture should be accorded protection under section 21 of the Prevention and Prohibition of Torture Act before being required to attend court for cross-examination.
- Whether the trial judge applied an erroneous standard of proof and failed to evaluate the evidence as a whole.
- Whether the State's failure to obey an order of inquest was relevant to the application.
Orders
- Ground 4 of the appeal succeeds.
- Grounds 1, 2, 3, 5 and 8 allowed.
- Grounds 6 and 7 disallowed.
- Appeal substantially succeeds.
- Ruling of the learned trial judge set aside.
- Matter remitted for a retrial.
- No order as to costs.
Key headnotes
Legislation cited (8)
- Evidence Act s.136(1)
- Evidence Act s.156
- Evidence Act s.166
- Prevention and Prohibition of Torture Act 2012 s.21
- Civil Procedure Rules SI 71-1 Order 52 Rule 3
- Civil Procedure Rules Order 19 Rule 2
- Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 30(1)(a)
- Constitution of Uganda Article 20(1)
Cases cited (15)
- Uganda v Isaac Newton Ojok (HCCS No. 148 of 1991)
- Okello Johnson v Lalam Angella (HCCA No. 13 of 2019)
- Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
- National Environmental Management Authority (NEMA) v Solid State Limited (Civil Appeal No. 15 of 2015)
- Pandya Vs R [1957] EA 336
- Kaingana v Dabo Boubou (supra)
- Soon Yeon Kong Kim and Kwanga Mao v Attorney General (Constitutional Reference No. 5 of 2007)
- Uganda v Commissioner of Prisons, Ex Parte Michael Matovu [1966] EA 514
- Rev. Father Santos Wapokra v Uganda (Criminal Appeal No. 204 of 2012)
- Fatehali Manji v R [1966] EA 343
- Ahmed Ali Dharamsi Sumar v R [1964] EA 481
- Ratilal Shahur [1958] EA 3
- Muyimbo v R [1969] EA 433
- M'kanake v R [1973] EA 67
- Tamano v R [1959] EA 126