THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT No. 412 OF 2001
BEFORE: HON. MR JUSTICE RUBBY AWERI OPIO
J U D G M E N T:-
During the scheduling conference the following were agreed upon:-
2. That on 5th July 2000, the plaintiff’s cattle were confiscated by a team of police officers led by D/SSP Nsababera.
3. That on the 20th September 2001 the plaintiff received back 7 cattle out of the 160 confiscated.
4. That the rest of the plaintiff’s cattle have never been returned.
2. A letter of 15/9/2000 by the Inspector General of Police to the Regional Police Commander Kampala Central.
3. The plaintiff’s complaint to the Regional CID.
4. A letter dated 9/8/2000 where the police agree to give the plaintiff his cattle pending clearing the matter.
5. Cattle movement request/permit by the District Veterinary officer dated 9/5/2001.
6. A letter authorizing movement of cattle.
7. A letter to move cattle
8. Resident District Commissioner’s letter returning some cattle.
9. A statutory notice.
2. Whether D/SSP Nsababera was acting in the course of her employment when she confiscated the cattle.
3. Whether the defendant is vicariously liable for the actions of D/SSP Nsababera.
4. Whether the plaintiff is entitled to the remedies prayed for.
The plaintiff called three witnesses.
Kasangachi Augustine (PW1) testified that he was LC1 Chairman Nsozi, Kyangwali sub-county in Hoima. He stated that on 5/7/2000 a team of police officers came to his area of jurisdiction being led by a lady called Nsababera. The lady police officer then asked him whether he knew about the cows which were with the plaintiff’s herdsman at the army detach. He gave the police officer movement permit indicating movement of 160 cattle belonging to the plaintiff (exhibit P1). After that Nsababera arrested him together with Rwamunono and the plaintiff’s herdsman, tied them with ropes and took them to Hoima Police Station where he was detained for three days. He was only released after the intervention of the Resident District Commissioner of Hoima. Rwamunono and the plaintiff’s herdsman were remanded in prison. Meanwhile the plaintiff’s cows were taken to the police station and confiscated.
Emmanuel Rwamunono PW2 testified that in 2000 he was working at the plaintiff’s farm as farm manager. He stated that on 5/7/2000 he was at Nsozi trading centre selling milk when he saw some people armed with guns, who asked him to identify himself. After identifying himself they ordered him to sit down. They removed his shirt and tied him with ropes. He was taken to the army detach at Nsozi Trading Centre. He later saw the chairman (PW1) who demanded to know why he was arrested. From there PW1 was also arrested and made to sit down. The plaintiff’s cattle were then brought whereupon he identified them. The plaintiff had 160 cattle. After identifying the cattle he never saw them again. He was later taken to Hoima where he was charged with theft of cattle. The charge was however dismissed.
He concluded that when he went back home he never saw the plaintiff’s cattle again.
Faustino Mukulira PW3 testified inter alia that in the year 2000 he had a farm for keeping cattle at Nsozi. He stated that on 7/7/2000 he received a message that on 5/7/2000 a team of police officers from Kampala Central Police Station led by D/SSP Nsababera had gone to his farm and forced his wife to lead them to his kraal where they arrested his herdsman and confiscated his cattle. On receipt of that information he went to Kampala Police Headquarters where he was referred to Central Police Station to see D/SSP Nsababera. Nsababera decided to arrest him and detained him for 8 hours. She later released him on police bond and ordered him to report to Hoima Central Police Station. On reaching Hoima Central Police Station the Police CID took his statement and ordered him to keep on reporting daily for one month. Later on he started to look for his cattle, which were confiscated. With the help of the Resident District Commissioner and Regional Police Commander he managed to recover 7 of them. He found them in Kagadi Army barracks. So out of 160 cattle, which D/SSP Nsababera had taken, he only recovered 7. After failing to recover the rest he contacted his lawyers. He testified that he drove his 160 cattle from Kyankwanzi to Nsozi on foot after getting movement permit from District Veterinary officer Kiboga (exhibit P1). He stated that the police headquarters investigated his case and found that his cattle had been taken without authority and that he was not guilty of any theft (exhibit P2). He concluded that he wanted the return of his 153 cattle or their equivalent at shs.350, 000/= per cow plus costs of the suit.
The defendant did not adduce evidence. The matter thereafter proceeded by way of written submissions.
RESOLUTION OF ISSUES:-
ISSUE No. 1:-
In the instant case the plaintiff adduced uncontraverted evidence that 160 heads of cattle were confiscated by D/SSP Nsababera. The defendant did not adduce any evidence to the contrary. The report by Osega Julius (exhibit P2) could not be relied on as evidence for the number of cattle which were confiscated since he was not produced in court for his confirmation of the number of cattle which were confiscated. That was very important. Furthermore none of those who participated in the illegal act were produced in court. They should have been produced to state how many heads of cattle they had removed from the plaintiff’s farm. In the absence of that evidence it can be concluded that the plaintiff has proved on the balance of probabilities that 160 heads of cattle were removed from his Kraal out of which only seven were recovered.
Issue number 2 and 3:-
Whether D/SSP Nsababera was acting in the course of her employment when she confiscated the cattle and whether the defendant is vicariously liable for the actions of D/SSP Nsababera.
Basing on the police report exhibit P2 the defendant conceded that the police officers involved in the incident were acting in the course of their employment though their actions were illegal. I do agree. D/SSP Nsababera was indeed acting in the course of her employment. She was traveling in a police pick-up accompanied by other policemen in uniform armed with guns. They went and introduced themselves before LC1 chairman of the area. The police report exhibit P2 did confirm that the police team was clearly in the course of their employment except that they exceeded their authority. The defendant is therefore vicariously liable for the acts they did on the plaintiff’s farm: See Barugahare Vs Attorney General SCCA No. 28/93.
Issue number 4:-
Whether the plaintiff is entitled to the remedies prayed for.
RUBBY AWERI OPIO
Nabakoza Margaret for defendant.
Plaintiff in court.
Muhimbura reported sick.
Judgment read in chambers as in open court.
RUBBY AWERI OPIO