A.K.P.M. Lutaya v Attorney General (Civil Appeal 10 of 2002)

Supreme Court · [2004] UGSC 13 · 2004 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from a Court of Appeal decision upholding the dismissal of a first-instance civil suit for trespass to land

Decision

Appeal allowed; lower courts' judgments set aside; matter remitted to the High Court to assess general and special damages, with a permanent injunction granted against the respondent's soldiers

The full judgment

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court allowed the appeal, holding the Attorney General vicariously liable for soldiers deployed at Mpoma Satellite Station who trespassed on the appellant's farm to cut timber for huts and gather firewood. Applying Muwonge v Attorney General, the Court held that acts done as a manner of carrying out duties bind the master even if improper or unauthorised; the inadequately provisioned soldiers acted in the course of employment and the State benefited. Both the trial judge and Court of Appeal erred in their evaluation of the unchallenged evidence and in treating the commander's acknowledgement as hearsay. The judgments below were set aside and the matter remitted to the High Court to assess general and special damages, with a permanent injunction granted.

Facts

The appellant was the registered proprietor of leasehold land at Kyaggwe, Mukono District, on part of which he established a farm with a deliberately managed forest. From around early 1995, NRA/UPDF soldiers deployed at the nearby Mpoma Satellite Station, who lacked adequate provisions, entered the farm and cut trees and timber to build huts for themselves and their families, gathered firewood, burned charcoal and took crops. The soldier population grew over time, and the cutting recurred with each troop reshuffle, severely depleting the forest. The appellant complained to local authorities, the Resident District Commissioner, the local commander and ultimately the army Chief-of-Staff. The local commander indicated the soldiers were acting on orders from above, and the Chief-of-Staff (Brigadier Nanyumba) acknowledged that the army occupied the area and had damaged the appellant's property, noting the State sometimes failed to cater for the army's needs. The appellant sued the Attorney General in trespass, claiming general and special damages and a permanent injunction. The respondent led no evidence.

Issues

Whether the Attorney General was vicariously liable for the acts of NRA/UPDF soldiers who trespassed on the appellant's land and removed timber, firewood and crops.
Whether the Court of Appeal erred in deciding the appeal solely on the issue of vicarious liability and declining to entertain the other grounds of appeal.

Orders

Appeal allowed.
Judgments and orders of the High Court and the Court of Appeal set aside.
Record remitted to the trial judge to assess and award damages for trespass to land and special damages.
Permanent injunction granted restraining the respondent's agents (soldiers) from trespassing on the appellant's land and harvesting timber, crops and fruits.
Costs awarded to the appellant in the Supreme Court and in the two courts below, the taxed costs to carry interest at 6% per annum from date of judgment until payment in full.

Key headnotes

Tort Law — Vicarious Liability — Acts within the course of employment

A master is vicariously liable for the acts of a servant done in the course of employment, and it is immaterial whether the servant acted contrary to orders, deliberately, wantonly, negligently, criminally or for his own benefit, so long as what was done was merely a manner of carrying out what the servant was employed to do.

Tort Law — Vicarious Liability — Liability of the State for acts of soldiers

Where soldiers deployed for state security are inadequately provisioned and take timber, firewood and materials from a neighbour's land to build shelter and sustain themselves so as to perform their duties, those acts are done in the course of their employment and render the State vicariously liable.

Civil Procedure — Second Appeal — Interference with concurrent findings of fact

A second appellate court should not lightly interfere with concurrent findings of fact, particularly on the credibility of witnesses; but a distinction exists between the perception and the evaluation of facts, and where the lower courts' evaluation of facts is erroneous the appellate court may re-evaluate the evidence and form its own conclusion.

Evidence — Credibility of witnesses — Evidence not challenged in cross-examination

A trial court is not entitled to brand a witness a liar where his evidence was not challenged in cross-examination and nothing in his demeanour impugned his credibility; such evidence remains untainted and credible and the mere fact that the witness knew the party is not a sufficient basis for rejecting it.

Evidence — Hearsay — Acknowledgement of a known fact

A statement by a commanding officer to a complainant that soldiers were authorised to take materials is not hearsay where the underlying fact, namely that the soldiers were cutting and continued to cut timber, was known to both the commander and the complainant as a fact.

Damages — Duty of trial court to assess damages in the alternative

Even where a trial court dismisses a claim, it should indicate what damages it would have awarded had the claim succeeded; a failure to make such an alternative assessment may require the matter to be remitted for assessment of damages.

Damages — Special damages — Proof and exaggerated figures

Special damages must be specifically pleaded and proved; but where there is evidence of damage and figures are given, the fact that the figures appear exaggerated does not justify refusing damages entirely — the court may award an appropriate amount and adjust the quantum.

Cases cited (8)

Muwonge v Attorney General (1967) EA 7
Kafumbe-Mukasa v Attorney General (1984) HCB 33
J. Barugahare v Attorney General (Civil Appeal No. 28 of 1995)
Mutyaba Leonard Sembatya v Attorney General (Civil Appeal No. 21 of 1994)
Caldeira v Gray (1936) 1 All ER 540
Benmax v Austin Motor Co. Ltd (1955) 1 All ER 326
Kampala City Council v Nakaye (1972) EA 446
National Enterprises Corporation & 2 Others v Nile Bank Ltd (Civil Appeal No. 17 of 1994)

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.