Wakilii

Berwanaho Charles v Attorney General (Civil Suit 391 of 2018)

High Court · [2023] UGHCCD 376 · 2023 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for damages arising from unlawful arrest, illegal detention, battery and torture
Decision
Judgment entered for the Plaintiff with awards of special, general and exemplary damages, interest and costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the Plaintiff's arrest on 16 December 2017 was unlawful, as there was no reasonable suspicion that he had committed or was about to commit a criminal offence. The detention at an ISO safe house at Kyengera violated Article 23(2) of the Constitution, which requires detention in a place authorised by law. The court found that the Plaintiff was battered through intentional and direct application of force during his arrest. The court further found that the Plaintiff was tortured by being blindfolded during transit and handcuffed to a pole at an oblique angle causing blood clots, in violation of Article 24 of the Constitution and the Prevention and Prohibition of Torture Act 2012. The Attorney General was held vicariously liable for the actions of its security agents who acted within the scope of their employment. The court awarded special damages of UGX 658,520,500, general damages of UGX 200,000,000, exemplary damages of UGX 50,000,000, interest at 15% per annum from judgment, and costs.

Outcome

Judgment entered for the Plaintiff with awards of special, general and exemplary damages, interest and costs

Facts

On 16 December 2017, the Plaintiff was arrested at his home in Sheema District while preparing for his daughter's giveaway function. The arrest was based on a complaint filed in June 2017 alleging forgery of receipts and stamps for Babenny Investments Company Limited. During investigation, the complainant refused to cooperate by producing the original documents for expert verification. The Plaintiff was arrested by a team of security officers including police, UPDF soldiers, and ISO operatives. He was blindfolded, handcuffed, and taken to an ISO safe house at Kyengera where he was detained from 16-18 December 2017. While detained, he was handcuffed to a pole at an oblique angle with his body towards the left side for extended periods. On 19 December 2017, he was transferred to Central Police Station Kampala and later released on police bond. The complainant subsequently disappeared, and the Director of Public Prosecutions found the allegations aimless and directed that the file be closed. No charges were ever preferred against the Plaintiff. As a result of the torture, the Plaintiff developed blood clots in his left lateral chest wall requiring long-term anticoagulant treatment.

Issues

  1. Whether the Plaintiff was illegally arrested and unlawfully detained by the Defendant's security agents.
  2. Whether the Plaintiff was battered by the Defendant's security agents.
  3. Whether the Plaintiff was tortured by the Defendant's security agents.
  4. Whether the Defendant is vicariously liable for the actions of its security agents.
  5. What remedies are available to the parties.

Orders

  • The Defendant to pay the Plaintiff special damages of UGX 658,520,500.
  • The Defendant to pay the Plaintiff general damages of UGX 200,000,000.
  • The Defendant to pay the Plaintiff exemplary/punitive damages of UGX 50,000,000.
  • The Defendant to pay the Plaintiff interest of 15% per annum on the special, general and exemplary/punitive damages from the date of judgment till payment in full.
  • The Defendant to pay the Plaintiff the costs of this suit.

Rules and key headnotes

Constitutional Rights — Personal Liberty — Unlawful Arrest — Reasonable Suspicion Required
An arrest without reasonable suspicion that a person has committed or is about to commit a criminal offence is unlawful and violates Article 23(1)(c) of the Constitution. Reasonable suspicion requires facts or circumstances sufficient to satisfy an objective observer that the person may have committed the offence, and must be more than bare suspicion or conjecture.
Constitutional Rights — Personal Liberty — Unlawful Detention — Place of Detention
Article 23(2) of the Constitution requires that a person arrested, restricted or detained shall be kept in a place authorised by law. Detention at an ISO safe house or any other place not gazetted by law for the purpose of detention is unconstitutional and amounts to unlawful detention.
Trespass to the Person — Battery — Intentional Application of Force
Battery is the intentional and direct application of force to another person and is actionable per se. Violently grabbing, lifting, bundling, handcuffing and blindfolding a person during arrest constitutes battery as it involves intentional and direct application of force in violation of the fundamental principle that every person's body is inviolate.
Constitutional Rights — Freedom from Torture — Definition and Elements
Under the Prevention and Prohibition of Torture Act 2012 section 2(1), torture means any act by which severe physical or mental pain or suffering is intentionally inflicted for purposes including obtaining information, punishment, or intimidation. Physical torture includes being tied or forced to assume a fixed and stressful body position, while mental torture includes blindfolding and confining a victim incommunicado in a secret detention place.
Vicarious Liability — State Liability for Acts of Security Agents
Under the doctrine of vicarious liability, an employer is liable for acts of employees done in the scope of their employment even if the acts are done contrary to orders, wantonly, negligently, criminally or for the employee's own benefit, provided the acts are a manner of carrying out what the employee was employed to do. For vicarious liability to apply, there must be an employer-employee relationship, the tort must be committed by the employee, and the act must be in the course of business.
Vicarious Liability — Personal Liability of Public Officers — Human Rights (Enforcement) Act 2019
Section 10 of the Human Rights (Enforcement) Act 2019 provides that a public officer who violates a person's rights shall be held personally liable notwithstanding the state being vicariously liable. The section does not exclude the state from vicarious liability but creates concurrent liability where the state is vicariously liable and the individual officer is personally liable, with the court determining what portion of compensation the individual officer must pay.
Special Damages — Medical Expenses — Proof and Pleading Requirements
Special damages are actual pecuniary losses including expenses actually incurred and must be specifically pleaded and proved. Where medical expenses are claimed, receipts must be tendered and only amounts pleaded in the plaint will be awarded as special damages. Expenses incurred after the filing of the amended plaint cannot be recovered unless properly amended into the pleadings.

Legislation cited (15)

Cases cited (20)

  • Sebuliba v Co-operative Bank (1982) HCB 129
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Fernandes v Commercial Bank of Africa Ltd and Another [1969] EA 482
  • Ochwa Olanya Charles v Attorney General (High Court Civil Suit No. 041 of 2012)
  • Dallison v Caffrey [1965] 1 QB 348
  • Collins v Wilcock [1984] 3 All ER 374
  • Muwonge v Attorney General [1967] 1 EA 17
  • Tusingwire Barahandika v Attorney General and Another (Court of Appeal Civil Appeal No. 210 of 2018)
  • Robert Cuossens v Attorney General (Supreme Court Civil Appeal No. 8 of 1999)
  • Livingstone v Ronoyard's Coal Co (1880) 5 App Cas 25
  • Uganda Telecom Ltd v Tanzanite Corporation [2005] 2 EA 341
  • Uganda Commercial Bank v Kigozi [2002] 1 EA 305
  • John K. Kagwa v Kototyo Wilber William and Another (High Court Civil Suit No. 273 of 2016)
  • Dorothy Tuma v Elizabeth Muller & Another (Civil Suit No. 229 of 2011)
  • Obongo v Municipal Council of Kisumu [1971] EA 91
  • O'Connor v Hewston [1979] Crim LR 46 (CA)
  • Archer v Brown [1985] QB 401
  • Lwanga v Centenary Bank [1999] EA 175
  • Mohanlal Kakubhai Radia v Warid Telecom Ltd (High Court Civil Suit No. 234 of 2011)
  • Cookson v Knowles [1978] 2 WLR 978 (HL)

Full judgment

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

Berwanaho Charles v Attorney General (Civil Suit 391 of 2018) [2023] UGHCCD 376 (10 November 2023)
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.