THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL DIVISION

HCT-00-CV-CS-0836 OF 2006

CHARLES HARRY TWAGIRA::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

1. THE ATTORNEY GENERAL

2. SAMUEL KYOMUKAMA ::::::::::::::::::::DEFENDANT

BEFORE: HON. LADY JUSTICE ELIZABETH MUSOKE

RULING

The plaintiff Charles Harry Twagira, brought this action seeking to

recover jointly and severally from the defendants, Attorney General

and Samuel Kyomukama general damages, punitive damages,

special damages, interest and costs to the suit.

The plaintiff contends that the prosecution by the defendants was

malicious and was without reasonable and probable cause in that

no statements were recorded from the complainants before the

plaintiff’s arrest and the start of prosecution. He further contends

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that no investigation relating to the preferred charges were carried

out before the plaintiff’s arrest and prosecution and that before the

arrest and prosecution there was no evidence whatsoever to

support the charges of embezzlement and theft.

The plaintiff alleges that the arrest and malicious prosecution by

the defendants has occasioned embarrassment, ridicule, disgrace,

emotional trauma, torture and loss of liberty to the plaintiff and his

credit as a businessman, family man and respected member of the

society and occasioned financial loss to the plaintiff.

The 1st defendant in his written statement of defence raised

various defences, that the proceedings were legally and properly

instituted and denies that he was vicariously liable for any loss,

damage, suffering and or inconvenience experienced by the

plaintiff as alleged among others.

The 2nd defendant in his written statement of defence also raised

various defences.

At the commencement of the hearing of the suit, the 2 nd defendant

raised some points of law as follows:

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 a) The suit is res judicata in so far as that the plaintiff had filed

in the same court Civil Suit No. 0013 of 2002 and the

subsequent appeals, which the 1 st defendant later

associated himself too.

b) That the suit does not disclose the cause of action.

In his written submissions, Counsel for the 2 nd defendant stated

that the plaintiff in this suit in 2002 filed an application before this

court vide Case No. 0013 of 2002, brought under Article 50 (1) of

the Constitution and Rule 3 (1) of the Fundamental Rights and

Freedoms (Enforcement Procedure) Rules and Order 2 rule 7 and

Order 48 rule1 (now Order 50).

He submitted that the suit was barred by the principle of res

judicata, and should be dismissed. He submitted that the suit is

brought jointly and severally against the defendants seeking for

general, special and punitive damages for malicious prosecution,

interest and costs of the suit. That these were the similar prayers

sought in High Court case No. 0013 of 2002 and that both were

heard and tried by the trial court and the appellate Courts.

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Citing Section 7 of the Civil Procedure Act, Cap. 71, Counsel

submitted that the issues in the former suit/application, that is,

High Court Case No. 0013 of 2002 and the issues before this

honourable court in this suit are similar and the same issues that

were adjudicate upon to their finality.

He relied on the case of Posiyano Semakula Vs Susane Magala [1979]

HCB 90, where the Court of Appeal held that;

“In determining whether or not the suit is barred by res judicata,

the test is whether the plaintiff in the second suit is trying to bring

before the same court in another way, in form of a new cause of

action a transaction which has already been presented before the

court of competent jurisdiction in earlier proceedings and which

has been adjudicated upon. If this is answered affirmatively, the

plea of res judicata will then not only apply to all issues upon

which the 1st court was called to adjudicate but also to all every

issue which properly belonged to the subject of litigation and

which might have been raised at the time through the exercise of

due diligence by the parties”.

In reply, Mr. Walubiri Peter, Counsel for the plaintiff did not agree.

He argued that although the plaintiff had earlier filed Civil Suit No.

0013 of 2002 which led to subsequent unsuccessful appeals in the

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Court of Appeal and in the Supreme Court, this alone did not make

the present suit res judicata.

Counsel relied on Mulenga J.A.’s judgment in C harles Harry Twagira

Vs Ag. DPP and Kyomukama Civil Appeal No. 4 of 2007 to state that the

cause of action in Civil Suit No. 0013 of 2002 was only premature

at the time. That the cause of action in malicious prosecution was

not heard and determined by all the courts of law.

I have considered the submissions of both learned Counsel and

the law and authorities relied on. Section 7 of the Civil Procedure

Act Cap. 71 states:

7. Res judicata.

“No court shall try any suit or issue in which the matter directly

and substantially in issue has been directly and substantially in

issue in a former suit between the same parties, or between

parties under whom they or any of them claim, litigating under the

same title, in a court competent to try the subsequent suit or the

suit in which the issue has been subsequently raised, and has

been heard and finally decided by that court.”

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In SCCA No. 4 of 2007, Justice Mulenga had this to say on page

3:

“It follows that the time for taking out such suit is after conclusion

of the prosecution, when the decision could be taken whether the

prosecution was malicious or wrongful.”

The suit was premature at the time as far as the claim for

malicious prosecution was concerned. The DPP later discontinued

the criminal proceedings against the plaintiff in the Magistrate

Court at which point the cause of action arose, hence the fresh suit

now instituted.

I now turn to the issue of lack of a cause of action.

Counsel for the second defendant submitted that the suit did not

disclose a cause of action as the action complained against by the

plaintiff were actions done by the defendant in his official capacity

as a police officer and an employee of the Government of the

Republic of Uganda.

He relied on the case of Muwonge Vs Attorney General [1977] EA 17

for the proposition that an act may be done in the course of the

servants employment so as to make his master liable even though

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it was done contrary to the orders of the master and even if the

servant was acting deliberately, wantonly, negligently or criminally

or for his own benefit . Nevertheless if what he did is a manner of

merely carrying out what he was employed to carry out, then his

master was liable.

In reply, Mr. Walubiri, Counsel for the plaintiff submitted that the

suit disclosed a cause of action against the second defendant in so

far as although he was an officer of the Uganda Police Force, he

acted beyond his capacity in preferring criminal charges against

the plaintiff; and that the second defendant’s high handed conduct

was certainly actionable.

Counsel relied on Tsekoko’s ruling in Charles Harry Twagira Vs

Attorney General and Others CA No. 4 of 2007, where it was held that:

“Therefore a civil suit against the Director of Public Prosecution

cannot be sustained and it is incompetent. The same equally

applies to the case against the 3 rd respondent he is a police officer

who was sent to London to re- arrest the appellant and escort him

to Uganda. He is the one who made the investigations and

applications under the law that led to the freezing of the

appellant’s accounts... I am of course aware that he could be

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 sued in his personal capacity if there is a possibility that he acted

beyond the scope of his duties.”

He maintained that the 2nd defendant could be sued in his personal

capacity as he exceeded the scope of his duties in the acts

complained of. I do agree with counsel for the plaintiff that the suit

discloses a cause of action against the 2 nd defendant in as far as it

is alleged that the 2nd defendant exceeded the scope of his duties

to the detriment of the plaintiff. The plaint clearly sets out the

rights of the plaintiff that were allegedly violated by the 2 nd

defendant causing loss to the plaintiff; elements of which make up

a cause of action as defined in Auto Garage Vs Motokov 1971 (EA)

514.

It is only fair that the plaintiff is given a chance to lead evidence to

prove that the 2nd defendant acted beyond the scope of his duties

or maliciously.

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In conclusion, I will disallow the preliminary objections, with costs

in the cause. Orders accordingly.

Elizabeth Musoke

JUDGE

19/04/2012