Wakilii

Adiandu v Inspector General of Police and Another (Misc Cause 146 of 2022)

High Court · [2024] UGHCCD 5 · 2024 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional enforcement application under Articles 20, 23, 28 and 43 of the Constitution and the Human Rights (Enforcement) Act 2019 for declarations and damages arising from alleged illegal detention and deprivation of property
Decision
Application succeeded in part — declarations granted on violation of right to personal liberty and property; claim for violation of right to fair hearing dismissed; general damages awarded; phone ordered to be returned

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the applicant's detention for 32 days without being released on bond or produced before court, coupled with denial of access to next of kin and lawyers, violated Article 23 of the Constitution protecting personal liberty. The continued retention of the applicant's phone after his conviction and sentence violated Article 26 protecting property rights. However, the failure to provide disciplinary court records and hear his appeal did not constitute violation of the right to fair hearing under Article 28, as that provision applies to criminal offences, not disciplinary matters. The court awarded general damages of UGX 10,000,000 and ordered return of the phone.

Outcome

Application succeeded in part — declarations granted on violation of right to personal liberty and property; claim for violation of right to fair hearing dismissed; general damages awarded; phone ordered to be returned

Facts

The applicant, a former police officer, was arrested on 12 February 2021 and detained at Railway Grounds Police Station for 10 days, then transferred to Kabalagala Police Station where he was detained until 15 March 2021 when released on bond — totalling 32 days detention. His mobile phone (Infinix Note 7 lite) was confiscated upon arrest by Corporal Jaiwambe Colet and retained. He was charged before the police disciplinary court with scandalous manner, tried, convicted and sentenced to dismissal. He lodged an appeal but was dismissed from service before the appeal was heard. The applicant claimed he was denied access to next of kin, lawyers and medical treatment of his choice during detention, though the respondents stated a police medical officer attended to him and he failed to provide sureties for bond. The phone was retained as an exhibit pending extraction of information, with the applicant refusing to provide the password.

Issues

  1. Whether the named rights and freedoms of the Applicant were infringed by the actions of the Respondents' agents — specifically the right to personal liberty, the right to property, and the right to a fair hearing.
  2. Whether the Applicant is entitled to any remedies.

Orders

  • Declaration that the detention of the Applicant by the Respondents' agents or servants at Railway Grounds Police Station and Kabalagala Police Station from 12th February to 15th March 2021 without being formally brought before court or released on bond, coupled with the denial of access to his next of kin and lawyers of his choice, contravened the Applicant's right to personal liberty under Article 23 of the Constitution.
  • Declaration that the continued retention of the Applicant's Infinix Note 7 lite phone contravened his right to protection from deprivation of property guaranteed under Article 26 of the Constitution.
  • The Applicant's mobile phone be handed over to him within thirty (30) days from the date of this order.
  • The Respondents pay a sum of UGX 10,000,000 (Uganda Shillings Ten million only) as general damages to the Applicant.
  • The costs of the application shall be paid to the Applicant by the Respondents.

Rules and key headnotes

Personal Liberty — Detention Beyond 48 Hours Without Charge or Bond
Detention for 32 days without being released on bond or produced before court violates Article 23(4)(b) of the Constitution, which requires that a person arrested on reasonable suspicion of having committed a criminal offence must be brought to court not later than forty-eight hours from arrest, and the police cannot lawfully detain a person beyond this period on the basis that sureties were not provided — the obligation is to release on bond with or without sureties if unable to produce the person in court within the statutory time.
Personal Liberty — Access to Next of Kin and Lawyers
A person arrested or detained is entitled under Article 23(5) of the Constitution to be accessed by next of kin and lawyers, and denial of such access during detention constitutes a violation of the right to personal liberty.
Property Rights — Seizure and Retention of Property by Police
Under Section 29(1) of the Police Act, a police officer may lawfully seize property if there are reasonable grounds to believe it might be used as an exhibit in relation to an offence under investigation, and such seizure falls within the constitutional exception under Article 26(2)(a) permitting deprivation of property in the interest of public safety or public order; however, once the purpose for seizure is exhausted (as upon conviction and sentence), continued retention of the property becomes unlawful and violates Article 26 protection of property rights.
Computer Evidence — Application of Computer Misuse Act to Seizure of Phones
Section 28 of the Computer Misuse Act, which requires a magistrate's warrant for seizure of computer items, applies strictly where police are investigating an offence under that Act; where police are investigating a general criminal or disciplinary offence and seize a computer item under their powers in Section 29 of the Police Act, their action is not vitiated merely because they did not follow the Computer Misuse Act procedure, as the specific statute provisions apply only to offences under that specific Act.
Fair Hearing — Scope of Article 28(6) Right to Record of Proceedings
Article 28(6) of the Constitution, which entitles a person tried for a criminal offence to a copy of the proceedings after judgment, applies to criminal offences and not to disciplinary offences; failure to provide a record of disciplinary proceedings and failure to hear an appeal from a disciplinary tribunal do not constitute violations of the constitutional right to fair hearing but may constitute procedural improprieties challengeable by way of judicial review.
General Damages — Assessment in Constitutional Violations Involving Detention
While infringement of personal liberty per se imputes damage, a plaintiff needs to prove some damage suffered beyond the mere fact of unlawful arrest or detention, otherwise the mere breach may only entitle a plaintiff to nominal damages; however, detention significantly beyond 48 hours (such as over one month) tends towards gross abuse of the right to personal liberty and warrants substantial general damages even in the absence of evidence of actual physical injury.
Exemplary Damages — Restraint in Award
Following Rookes v Barnard, exemplary damages may be awarded in three categories: oppressive, arbitrary or unconstitutional action by government servants; conduct calculated to make profit exceeding compensation; or where statute authorises such award; however, courts must exercise restraint before awarding exemplary damages, and where general damages suffice to meet the ends of justice, exemplary damages should be declined even where constitutional violations are established.

Legislation cited (30)

Cases cited (8)

  • Zachary John Olum v Bongomin John Odora & Others (HC Civil Application No. 120 of 2015)
  • Hadley v Baxendale (1894) 9 Exch 341
  • Charles Acire v M. Engola (HC Civil Suit No. 143 of 1993)
  • Kibimba Rice Ltd v Umar Salim (SC Civil Appeal No. 17 of 1992)
  • Uganda Commercial Bank v Kigozi [2002] 1 EA 305
  • Ochwa v Attorney General (HCCS No. 41 of 2012)
  • Butterworth v Butterworth & Englefield [1920] P 126
  • Rookes v Barnard [1946] ALLER 367

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Adiandu v Inspector General of Police and Another (Misc Cause 146 of 2022) [2024] UGHCCD 5 (3 January 2024)
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.