Lutaya v Attorney General (Civil Appeal 10 of 2002) [2004] UGSC 42 (19 March 2004)

/ L Cr \ ,-t1 "r#, REPUBLIC OF UGAI{DA IN THE SUPREME COURT OF AT MENGO ICORAM: ODOKI, CJi ODER, TSEKOOKO, MULENGA AI{D KANYETHA!{BA,,rJ. S . CI \1 J r UGAI{DA .. CA \ o BETWEEN A.K.P.M. LUTAYA AND ATTORNEY GENERAL APPELLANT RESPONDENT .]UDGMENT OF TSEKOOKO, iISC : This appeal arises from decision of the CourE of Appeat which upheld judgment of the principal Judge dismissing appellant's action. o t.he Lhe the 1 a I l,-r'--,^.1 EIVIL APPEAL No.10 OF 2OO2 [AppeaT from the judgment of the Court. of (Kato, okelLo & Mpagi -Bahigeine, ,tt.a] dated Civil Appea 7 49 of 20071. AppeaT a t Ka.urpa.?.a 6th l,larch, 2o02 in There is a 1ittle confusion in the recording of evidence from wi-tnesses and the numbering of witnesses in the t.rial court record. But the facts appear c1ear. A.K.P.M. Lutaya, the appellant, at. all time material to these proceedings, was the registered proprietor of a piece of land comprised in Leasehold Regist,er vol_ume o o 7425 FoIio 13 Block 97 plot 1, Kyaggwe, in Mukono Dist.rict. He esEablished a f arm in one part of t.he 1and, (hereinafter referred to as the 'rIand") He brought an act.ion in trespass againsE the Respondent. Attorney General in the High Court. In the act.ion he claimed for general damages, special damages for Erespass to the land and for a permanent. injunction. In the plaint, it was alleged that during February 1995, 600 covernment soldiers, who were deployed at Mpoma Sat.ellite SEation, trespassed upon t,he appellant,s land and caused substantial damage t.o his farm and his exclusive and demarcated forest. It was also alleged that Ehe soldiers Eogether wit,h their families cut down trees and removed varuabre Eimber for constructi-on of houses to live in and for firewood and charcoal burning. In the process the soldiers ruined the appelranE's hitherto well preserved and. treasured. forest cover. In his writ.ten defence, the respondent admitted t.he presence of some sordiers at t.he station, but denied they were 600. He also denied knowledge of the existence of a farm and the alleged damage t.o it by the soldiers. The Respondent staEed further t.hat if any soldiers trespassed, they did so on their own floric. In the trial court, six issues were framed for determination. Issue No.4 which was key, bot.h during t.rial and on appeal , was wbether t,he Attorney General was liable for the acta of the soldiere belonging to 2 o o UPDI'. The learned principal ,Judge hetd t.hat. the At.t.orney General was noE liable. The appellant appealed to the Court. of Appeal on six grounds. The fourth ground upon which the court decided the appeal and which was t.he same as issue No.4 in the trial_ court, was whether tbe Reapondent, was vicariously liable for the acts of the soldiere. The Court of Appeal answered t.his in the negat,i_ve and so dismissed the appeal . The appeal before us is on two grounds, the first of which was amended with leave of Ehis court, The grounds are formulated as follows: - L. The Tearned .fustlces of the CourE of Appeal erred in Law in holding that Ehe Att,orney Genera.l r{ras not rricarious-Ly Tiable tor the acts of the sol,diers of finA. 2. The Tearned ,Justices in -Law and fact when case was vicarious Genera.L and refused the appeal raised. In substance these grounds are about the same thing. Submi.tting on the first ground, Mr. Semuyaba, for appellant, argued that on the evidence available, Court, of Appeal erred in holding t.hat, Ehe act.s of soldiers did not bind the Attorney General and that. CourL misdirected itself and misinterpreted evidence of Brigadier Nanyumba(pW6) when it he1d. 3 of the CourE of Appeal erred they held that the crux of the TiabiTity of the Attorney to entertain other grrounds of the the the r,he the that a his evidence was hearsay. Counsel contended that, the soldiers who cut the appellant's timber and trees did so in Ehe course of their duty. He furE.her contended that the Court wrongly applied the principle of vj.carious liability as enunciated in the decision of Muwonge Vs Attorney General (1967) 8A.7. In support. of his contention Ehat the AtLorney General is liable, Iearned counsel relied on Kafu:nbe-Mukasa Vs Attorne , General (1984) HCB 33, .r. Barugahare Vs At.torney liability principles in Muwonge case to hold t.hat the respondent was not liable for the alleged acts of the soldiers. Learned St,ate Attorney also supported the view of the Principal Judge who had opined that Brigadier Nanyumlca gave evidence to support the appellant as a friend, contending that the Brigadier's evidence as weII as Ehat of the appellant himself is hearsay. The State AtLorney argued that the cases clted by appellant's counsel are distinguishabLe and that if the soldiers went to the land they were not officially ordered, employed or authorised to trespass on the appellanE's }and. o In his content.ions, Mr. Semuyaba relied evidence of four witnesses. These were himself (PW. l- ) , Kibuuka ,Joseph (pWS ) mainly on the the appellant who was the 4 General Civil Appeal No.28/95 and Mutyaba Leonard SembaEya Vs Attorney ceneral - Civil Appeal 2t/94 (s.c) (both unreported). Mr. Wamambe, SEat.e Attorney, supported the decision of t.he Court of Appeal , arguing that the court acted properly and relied on vicarious a O appellantts worker and driver and Brigadier Nanyumba (Pw6) . In the Court of Appeal , Oke11o, J.A, delivered the lead judement with -which _th€ o_thqr members of Ehe "orri qoncurred. The learned .fustice of Appeal- first consj-dered the fourth ground of appeal before he upheld the decision of the learned Principal Judge. I have already alluded Lo the fourth ground. In this appeal I. note that both the trial court and the first appellate courE have made concurrent findings of fact that t.he evidence of 'the appellant did not prove vicarious liabitity against. the respondent. In such a sit.uat.ion Ehe practj-ce has been that a second appellate courL should not. lightly interfere with such concurrent findings of fact, parEicularly where a t.rial judge has made a finding on credibility of witnesses whose evidence is in confl-ict. Tt has been held by Ehe privy Council in Caldeira Vs cray (1935) 1 ALIJ 8R.540 thaL: t'Where a trialJudge has come to a conclusion upon a pure questiorl of fact, the appe1JaEe tribunal, cannot, merely because it has been decided in one way by the ttial judge, abdicate their duty to review his decision, and to reverse it, if they deem iC to be wrong.,, The Privy Council in that. judgmenE cautioned that. the functions of the appellat.e t,ribunal when dealing with a pure quesEion of fact in which quest.ions of credibility b o are involved are limited in their character and scope. In other words where a questi_on of credibility of wiLnesses has been resolved by a trial Judge after proper evaluation of the facts, his findings should normally not. be interefered wit.h. But where evaluat.ion of fact.s is erroneous, an appellat.e court can do the evaluation and come to it.s own conclusions. This is illustrated further by a decision of the House of Lords in Ben:nax Vs Austin Motor Co. Ltd (1955) l AlI E.R. 326, where the House of Lords hel_d (on 2"d appeal) that: nAn appeTTate CourE, on an appeal frorn a case tried before a judge a7one, shouJ.d not light.ly differ from a finding ot the trjal judge on a question of faet, buE a djstjnction in thjs respect must be drawn between the perception of facts and the eval_uation of facts. Where there is no question of the credibil.ity of witne,sses, but the soJ,e question is the prope r inference to be drawrr frorn specific factst an appefJ,ate court is in as good a poslEjoa to evaJ,uate the evidence a,s the trial judge, and should form iEs oi,n independent opinion, Ehough jt wilt give weight to ehe opinion of the trial judge.', relied on Muwonge Vs General and argued that t.he acts of Ehe army personnel who collected Eimber and crops from 6 a In this case at the Eria1 in the High Court., only the appellanE. and his witnesses gave evidence. The respondent adduced no evidence. The appelLant,s counsel Eo supplement done in the Government of their farm acts their course o In his judgment the learned principalIudge first disposed of the 3'd issue which was "whether NRA soldiers invaded the plainEiffs farm land and caused extensive damage to the crops thereon and forest coverrr before he resolved the fourt.h issue which was on vicarj-ous liabi1it.y. The learned principal Judge alluded t.o the relevant averments j.n paragraphs 2,3 and 4 of the plaint., Lo the evidence of the appellant, t.hat of Semucho (pW4) of Dr. AIum (pW 3) and Brigadier Nanyumba before he conclud.ed t.hat the plunder of the farm was done from or prior to 1973 by soldiers of the pre-Nanyumba era as we1l as by ordinary people. He held that Nanyumba was a 1iar who was helping a friend, the appellant. The learned Principal Judge went. so far as to require t.hat the appellant should have produced evidence of the places where the burning charcoal took place, the part,iculars of the soldiers, of trucks, of the market. where the charcoal had been sold and even one or two customers to whom the soldiers had sold the charcoal . He concluded that uit, was not only the NR.A/ttpDF who caused the extensive damagre to the properEy,t. Consequently, he answered the 3'd issue in the negative t,hereby holding def init.ety that the respondents servants did not participate in the 7 e the appellant ,s provisions were employment. o o damage complained of. Having thus made that finding, Lhe learned Principal .Iudge found it easier to answer the 4th issue also in the negat.ive. Wit.h great respect these findings do not have a sound basis and. in my view the inferences of the principle Judge are wrong. Brigadier Nanyumba was not. cross-examined on his evidence. There was no ot.her evidence to contradi-ct him. To brand him a liar when his evidence was not challenged is unfair. The fact t.hat he had known the appellant was not good enough for 1abeI1ing him a liar and hoJ_ding him unreliable. He testified that he was E,he Chief-of-Staff aL the material- time and continued: - uMr. Lutaya cornplained about his fann Dear .[JuJcono. ?his is a copy of the comunication (exhjbit P.3). I received a copy of it,. We as the army were occupying the area and that, the army had desEtoyed .Lutaya,s property. When I receiwed t&ls coarmuni ca t jon it was my duty to task the commander. Z do not remem.ber what the response of the uni t eommander was. But he confirmed that UpDp was occupyingr the land near Mr. IJlutayas and. that they had damagred his crops. f was not jnformed of the nurnber of the troops..., ?he state for the commander some tirnes needs of may take may not be able to the army. The the initiative to ca ter Local, secure 8 a o provisions. unusua.L r So trlr. Irutayat s compTain t is not This evidence appears to be thaE of a neutral witness who was doing his best t.o recollect whaE he coul_d remember. The appellant testified abouE the crops, Ehe fruj.t.s and Ehe trees planted on his farm. He also stated t.hat there was a naturaL forest and that in 1995 soldiers who were guarding Mpoma satellit,e sEation were without provisions. According to him: ,,From the day the sol,diers arrived was the invasion of my managed forest to collect tim.ber for the construction of their hute. They cut my forest by literaTly inwad.ing my forest and took it over. When Ehey were chaTTenged the soldjers sajd the comrrander had sent them. I wenC to complain to the commander. I complained that my workers were frightened out of thejr wits. The commander sajd they wanted shelter and the rren were serxt by orders from a.bove, They needed huts and firewood; they need,ed, water-._._ the cuEting of E&e forest started around ;Ianuary 1995 or erzea ear.Ljer. Since then thjs has continued up to date. I estabJ,ished there were about 300 soTd,iers of Me-_... EventuaTTy the population grew to about 600 peopTe, including wives and child.ren..- 9 Those who are transferred oJ,d huts they for were heal, th a destroying the reasons..-.-.-.-._.. . Each t,ime there js a reshuffTe, there is new the cutting cutting. When I fjled Ehe suit had taken one year. As a resuft my forest reserve has been severely depleted. It continues to be harvested at randorn without inwentory, without remuneration and wjthout any arrangement whatsoever. The soJ.diers have concentrat.ed on naturaJ, fores: and on the high and ta77 trees orz the deliberately managed forest,, o In his testimony Nanyumba implicitly evidence. The appellant was cross-examined at subsEantially repeat.ed what he st.at,ed in chief about the destruction of the burning and ferrying of poles. supported this length and he in examination forest, charcoal Edward Semucho (PW4) had worked on the farm before 1994. His evidence shows t.hat during Ehe t,ime he was at the farm, Ehe soldiers were not. very many. He also implied that the damage claimed by the appellant. was rather exaggerat,ed and Ehat, much of Ehe farm had. been neglected. According Eo his evidence, fruit Lrees 10 a o (Avocados, bananas, mangoes jackfruits)were there and by 1994 Ehey were bearing fruits. When he revisited the farm in 1996, Avocados, mangoes and jackfruits had been roughly handled and damaged. He did not say who damaged them because at. the material time before his return in 1995 he was not at the farm. According to Semucho, soldiers went Eo the farm from 1992. By l-996 there were many huts of soldiers and ,,bush, from the farm had been cut to build these hut.s. The soldiers used to collect firewood from the farm. In my opinion this evidence tended to support, the appellant as to Erespass, cutting of tress and collection of firewood. In the appeal Court of Appeal , as was disposed of afE,er already pointed consideration of out, the only one 11 Ssewadde Sonko (pw3) an Agriculturist and one of Ehe expert witnesses inspect.ed the appellant's farm and produced his report (exhibitp.4) in which he assessed the value of the 1oss. His evidence and that of Moses Kayima who signed the said report. was hardly challenged. In April t L99't, Lhe appeltant engaged Dr. John Alum, a forest expert. to value the damage to t.he farm. He and his assistants produced a report (exhibit p.2). AE the time he saw no evidence of charcoal burning but trees had been harvested from the forest. He saw some huts. For security reasons, he could not photograph the huts occupied by soldiers. a o was stated in Muwonge Vs Attorney Generalt, Thereafter he stated the principle to be: ttonce the acts wete done by the servant jn the course of hjs eaplolanent, it is immateria-l. wheEher he djd iC contrary to his master,s orders or deliberately, wantonly negligently oi even criminally or djd it for Dis ( servant, s) own benefit, the master js vicariously liable so Long as what the servant did was mereTy a mariner of carrying out what he was empToyed to carry out,r. L2 ground, namely ground 4, which hinged on vicarious 1j-ability of the respondenE because of the act.ivities of the soldiers on the appetlant,s farm. fn his lead judgment. Oke11o, JA, cit.ed passages from the Muwonge case (supra) in which Sir Charles Newbold, the President of the E.Africa Court. of Appeal , set out t.he principles of vicarious liability. The learned .fustice of Appeal then referred to a passage in the judgment of the Principal ,Judge from which the learned 'Justice of Apeal concluded thaE the principal ,Judge "ceitainly tended to give a narrower interpretation to the principle of v.i,carious Tiability of a master than In the Court of Appeal counsel for the appellant. had argued t,hat. by cuLting poles Eo const,ruct huts Eo live in, t.he soldiers' conduct made the respondent, liab1e vicariously. a o According Lo Oke11o, JA, the crucial question to answer in the case was whether when the soldiers cut poles for making Eheir huts or when the soldiers collected fire wood or burnt charcoal, those were acts which soldiers were employed to do or the manner of carrying out what, they were employed to do or to carry out or whether they were ordered to carry ouL those acts. He then referred Eo the appellant,s complaint to the Local commander of NRA and the latter's reply that: "The men were gent by order from aboven. He concLuded strangely that this is not evidence that soldiers were ordered to carry ouL acts complained off and Ehat there was insutficient evidence Eo establish vicarious liability. In my opinion Ehis conclusion like Ehat of the principat Judge, is on the facts, erroneous. IE j.s common ground that soldiers camped next t.o the appellant's farm. They therefore, had opportunity for access to Ehe farm. Appellant's unchallenged evj-dence thaL the soldiers t.respassed on his land is supported by that of Edward Semucho. Further, Brigadier Nanyumba t,estified t.hat soldiers were in the area and E.hat the appellant. complained about the damage caused to his farm by those soldiers. Therefore the Brigadier Lasked the 1ocal commander who informed him that soldiers had damaged the appellant's crops. I think that this was an acknowledgement of t.respass. The Brigadler st.at.ed 13 o that the Stat.e sometimes may not be able t.o the needs of t.he army. Therefore a loca1 "may Eake initjatiwe to secure provisions. Lutaya,s compTain t is not unusuaJ,. ,, cater for commander So Mr- Normally this st.atement. would not mean much. However in the context of the fact.s of t,his case it does. The learned Principle Judge held that. in his evidence the Brigadier in this regard was helping his friend, t,he appellant. In my view and wiCh aII due respect, this finding is without, proper foundation. The Brigadj-er was not cross-examined about. the mot.ive for LesEifying as he did. He was not asked whether he was helping a friend or was simpty telling the trut.h or falsehood. The record does noE show that. his demeanour as a witness showed t,hat, he was not a credible witness. That means that his evidence remained untainted and credible. This enti_tled t,he trial- court to make such inferences as are reasonable within E.he context. In my opinion Ehe most reasonable inference on Ehe evi.dence as a whole is that normally in the Uganda army when soldiers lack provision for their needs, they help themselves. They can do this, for instance, as happened in this case, by invading a nearby forest to cut Uress and get firewood. The appellant. t,estified that soldiers cut his f oresE so as to const,ruct hut.s f or the soldiers and family to Iive in while performing official duty. This forced the appellant to raise his complaint directly with a local commander of t.he t4 a a o soldiers and who was in charge of the same soldiers. That commander was t.hen obliged Lo tell the appellant, in effect., that, what the soldiers were doing, €.g., cuEting timber, was authorised. from superj.ors, In t.he circumstances iE was not incumbent upon t.he appellant to embark on the exercise of establishing the t.ruth of that commander's statement. thaE his superiors ordered soldiers to do what they did. He was entitled to assume and believe that the soldiers had been authorised Eo construcE hut,s using materials from the appellant.'s forest. Aft.er a1I the soldiers were supposed t.o be housed by the state. Not enough houses appear Eo have been provided. The soldiers constructed the huts while on official d.uty so as to be confort,able. They were therefore, performing official functions in a crude way. Both the learned erincipal .Iudge and the Court of Appeal appear to regard what t.he local commander told t.he appellant as hearsay. In this case that. can not. be hearsay. The soldiers had cut and continued to cut timber. Both the local commander and the appellant knew this as a facE. In that regard, the evidence of Kibuka Joseph (pW5) is important. He testi fied: "Between 7995-96 I saw so.T,djers coming to visit us. They would gather firewood and timber for building. They ate matoke tomatoes, fene, etc. Accompanied LuEaya to reporC to chairman RCl Kiswera. He gave us 15 a o a l.etter to take to Lipoma SaEeJ,l,i te to report to the boss of the soJ,diers. fhere were many soJ,diers coming. Some were siEtingt others picking firewood, others mowing out and out. Their uniports were mote than 700. They continued despite our complaint. I know the environs of the f arm. There js nowhere else they couTd have coJ.J.ected f irewood. ,' 16 This witness was noE challenged on this evidence which evidence showed Ehat soldiers t.respassed on the appellant's land and removed Eimber and crops therefrom. It is my view thaE if iE was a quest.ion of one soldier or Ewo soldiers doing the damage complained of by Ehe appellant once or twice or stealthily, it could accord with the opinions of both the learned Principal Judge and the Court of Appeal that the soldiers act.ed on their own f lori-c . BuL, where, as it is quit,e evident. in this case, that soldiers made it rout.ine to harvest t,imber and fruits from the appellant's farm for the purposes of enabling them to perform their funct.ions, it ceases to be a floric of the soldiers. The matter appears Eo have been so routine and so apparently official t.hat. Ehe appellant had to complain not only to RCs buE also to the Resident. District Commissioner and to the commanding officer and eventually to the Chief- of-St.aff of the army. The latter acknowledged the o O damage which he impliedly atstributed to failure by the state Eo provi-de for soldiers. The Ministry of defence deployed soldiers at Mpoma Satellite st.at.ion to perf orm stat.e security matters. The MinisEry of defence was bound Lo provide accommodation for and food to the soldiers. Failure to make Ehe provisions for t.he soldiers tempted t.he soldiers or their commanders to use init.iative for the soldiers to survive in order to be able to perform state duties. Surely it can noE lie in t.he mouth of the respondent to say that in those circumstances soldiers did what they did at their peril or t.hat they should have s1ept. in the open to face the vagaries of nature. I can not agree. Wj.th greaE respect to both the learned principal Judge and the Court of Appeat, bouh failed Lo appreciate that the facts proved in this case established vicarious liability. In my opinion, the acts of the soldiers were official- acts and they bound t.he respondent in terms of the vicarious liability principles enunciated in t.he Muwon e case. I therefore hold that both the learned Principal .fudge and the eourt of Appeal erred when each heLd that Ehere was no vicarious liability for the respondent. arising from the conduct of Ehe soldiers. I Lhi-nk that vicarious liability was proved and therefore ground one must succeed. Vicarious L7 o o liability was Ehe basis upon which the Court below decided the appeal . The conclusions on ground one disposes of this appeal. This means the appeal must succeed. What is the consequence of this success? In hj-s plaint,; (a) The appellant prayed for damages arising from trespass to Iand. (b) Damages for loss of property and business investment valued at shs 255,800,00O/=. (c) A permanent injunction restrainj-ng the defendant's soldiers from trespassing on the plaintiff's 1and. (d) costs. The learned PrincipalJudge held that the loss claimed was speculat.ive. He appears to have ignored prayers (a) and (c) and concentrated on prayer (b) . In his view: "As I have stated jt caanot be said that onTy the so.T,diers of NRA/VPDF could have jnvaded the pl,aintiff,s farmTand and harwested crops, wood and tinber. For anyone therefore making a claim of the J,oss, there ,nust be apportionnent of the cause of the -l,oss. In particular it is now t,rite 7aw that specia.l damagres must not onTy be speciaTTy pJeaded but they must in addiEion, be specificaTTy proved. f confess I have not, found any proof, of damage attributed wholTy or even part.iaLTy to the NRA/UPDF so-Ldlers. The financjal l,oss adduced 18 o is based specu.T,ation " . on quantit,ative ar2d market Because of the holding which I have just, guoted, the learned Principal Judge awarded no damages. He said nothing about the prayer for an j_njunction. It is a well established judicial practice that in thi s t.ype of cases , a t,rial courE should indicate what it would have awarded as damages if t,he plaj-ntiff had established his claim: See National 19 o The appellant in this appeal pleaded special damages in his amended plaint. He adduced (exh.P.4) evidence to prove this. The learned PrincipalJudge said the evidence was ,,based on quantjtative and market speculation.'r I guess that, he means the loss was exaggerated. In the case of Kampala City Vs Nakaye 0972) E A 445 the respondent as plaint.iff claimed special damages arising from her damaged house and propert,ies. Trial court, accepted her oral evidence (receipts were losL) as to her loss and her c1aim. The amount. claimed was more than value of property Iost. On appeal in the E.A. Court of Appeal it was found that there was an error in t.he value of t.he properties lost. That Court (page A+g) correct.ed the amount. and upheld the award of special damages but reduced Ehe amount. In principle I see no dist.i.nction between the ctaim in these proceedings and the cLaim in Nakaye caae. o o Evidence shows t.hat the soLdiers trespassed on t,he appellant's 1and. In that. respect., he is ent.itled to some damages for t.respass. AIso he would be entitled to t,he grant of the prayer for a permanent injunction, if the soldiers are stilI trespassing on the 1and. I agree thaL damages for timber, charcoal and fruits may have been exaggerat,ed. But since there is evidence of damage, and figures are given some amount shoutd be awarded. rhis Court is not. in a posit.ion t.o assess the damages now. This should be done by the trial court. Meantime I would grant a permanent j.njunction restraining the respondent's agenEs (soldiers) from t.respassing on the appellant.'s land and harvesting t.imber, crops, and fruits therefrom. For the foregoing reasons, I would allow the and I would set aside the judgments and orders two courts beIow. I would remit Ehe record trial judge to assess and award damages for: (a) trespass to land and (b) Special damages. appeal of the to the 20 Enterprises Corporation e 2 others Vs Nile Bank Ltd., Civil Appal- No.17 of t994 (unreported) . If the learned Principal ,Judge had assessmenE the damages, I would have considered his estimate of the damages on the matter. a I would award Ehe appellant. Ehe costs in this Court and in t,he two courts be1ow. The taxed. costs will carry interests at the rate of 6t p.a. from date of judgment ti1l paymenr. in full. Dated. ar Mengo rrris........1f........day of ..... o ......2004. .l .5 ,l.W ekooko ,IU F THE SUPREME COURT C P, C t L )-"-\ TIC T 2L il*a."1 \L )^', 1-A ilrl. ),a-4+ L -) THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO (coRAM ODOKI, CJ., oDER, TSEKOOKO, KAROKORA, AND . KANYEIHAMBA' JJSC) CIVIL APPEAL NO 1O OF 2OO2 BETWEEN A.K.P.M. LUTAYA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT AND ATTORNEY GENERAL {Appeat from the iudgment of the Court of Appea-l at Kampala iiiio, Oxeno, ana mfiagi'aahigeine JJA) datg-d 6th March 2002 in Civit APPeal No.49 of 2001) JUDGMENT OF ODOKI, CJ. I have had the advantage of reading in draft the iudgment prepared by my learned brother Tsekooko JSC, and I agree with him that this appeal should be allowed with the orders he has proposed The main issue in this appeal is whether the court of Appeal erred in holding that the Attorney General was not vicariously liable for the acts of the solders of National Resistance Army (NRA), which forms the first ground of appeal' I agree that there was sufficient evidence to prove that the soldiers who plundered the appellant's farm and forest were acting within the course of their employment because the trees, timber ad firewood they removed from the appellants forests were used by them to facilitate the performance of their duties. The trees and grass they removed were used to build houses and huts for their I RESPONDENT barracks and the firewood was used to cook the food they had secured from his land. These activities were part of the manner in which they were enabled to carry out their duties. lt was immaterial if the manner in which they carried out their duties was improper or unauthorized, so long as it was merely a manner of carrying out their dulies. Muwonqe v Attornev General (1967) E A.7 The soldiers' employer namely the Government benefited from the activities of soldiers since there was evidence from their supervisors that it was normal for soldiers to obtain these supplies for themselves when the Government failed to provide them. Therefore there was at least an implied authorization for the soldiers to help themselves on the appellants' property. However, from the evidence of the officer in charge of the soldiers and Brigadier Nanyumba, who was the then Chief of Staff, it is clear that the authorities were aware of what was happening and did nothing to stop it. On the contrary, it was alleged that the soldiers were doing so because of the orders from above. ln those circumstances, the Respondent was clearly vicariously liable for the actions of the soldiers which were committed in the course of their employment, and the Court of Appeal erred in holding otherwise. ln view of the fact that the learned Principal Judge did not, as he should have done, assess the damages he would have awarded had he found for the appellant, I agree that the case be remitted back to the trial judge to assess general and special damages payable to the appellant. lalso agree that a permanent injunction be issued against the respondent to stop the soldiers from trespassing and plundering the appellant's land 2 As the other members of the court agree with the judgment and orders proposed by Tsekooko, JSC, this appeal rs allowed with the orders as proposed by the learned Justice of the Supreme Court. { AA** Dated at Mengo this "4t day of B OD cHt JUSTICE .) 2004 CORAM: A.K.P.M. LUTAYA ATTORNEY GENERAL JTIDG IN THE SUPREME COURT OF UGANDA ATMENGO ODOKI, CJ; ODER, TSEKOOKO, MULENGA AND KANYEIHAMBA, JJ.S.CJ CIVIL APPEAL NO. 10 OF 2OO2 BETWEEN APPELLANT RESPONDENT MENT OF MULE NGA JSC I had advantage of reading in draft the judgment prepared by my learnel brother Tsekooko.JSC and I agree that the appeal be allowed. I also concur AA,, with the orders hgproposed. ^, Dated at Mengo thi $ day of 2004 J N Mulenga Justice of the Supreme Court AND lAppealJrom the judgment of the Court of Appeal ot Kampala {Kato, Okello & Mpagi Bahigeine,JJ.Aj dated dh Morch, 2002 in Civil Appeal No. 19 of 200! I t I I I THE REPT'BLI('OF T G,\\D.{ I\ THE ST PRE\IE COT RT OF T G-\\D,\ .{T }tE\GO XL rl- !16 4 (COR.A,tl: ODOKI, C,J., ODER, TSEI|OOK0, K.A.\', t', E I H.1.r I 8.1, J. J. S. C. ) l ('tVIL.\PPE{L \O. t0 Ot 2002 ,\,K.P.}I. LT T.\\,\ : ::::: :: : : ::: : : : : : :: : : : :: :: :: ::: :: :: : :,\PPELL,\\T -\\D {TTORNE} CE\ER,\L: ::: :: ::::: :: :: ::: : RESPO\DE\T [.-l1tpcal lrrtm tltt jutlgmat o/ rha ( turt rf .4ppuctl ut Kanpala (Kato. Okcllo ctutl llpctgr-ll<tltrgcute. .1 .1..1.1 tlcrretl 6 3 20()2 itt ('ttil .-lp1tactl .\o. I ol 2()()21 Dated at MenLro thrs ,1\ 1 ta an of NV^, cL^- 2 001 JT'DG II E\T OF K\\\'EIH,\\IB.{. J,S.C. I have had the benefir of reading in drati the .judgrnent of rnl learned brother. Tsekooko-.TS.C Iagree rrith hirn that the appeal should be alloled I uould set aside the judgrnents and orders of the Courr of Appeal and of the High Court for assessrnent of seneral darnages for trespass and specral darnages. I s ould rernit the case lo the Higlr Court for assessrnent of danrar:es lalso agree uith the proposals and orders ntade bl Tsekooko..l S C G \T' [ANYEIHAN,It],A ,II STICE OF THE ST PRE\tT. ( OT RT