THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL DIVISION

CIVIL SUIT NO. 640 OF 2005

1. DR. NGANWA WILLIAM

2. DR. LULE JOHN                         ::::::::::::::::::::::::::::: PLAINTIFFS

3. MR. OTIM FRANCIS

VERSUS

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::::: DEFENDANT

BEFORE: HON. JUSTICE ELDAD MWANGUSYA

JUDGMENT

The plaintiffs are former employees of the National Drug Authority. DR. WILLAIM NGANWA (1^st plaintiff) was employed as Chairman National Drug Authority, DR. LULE JOHN (2^nd plaintiff) was employed as Information & Training Officer while MR. OTIM FRANCIS (3^rd plaintiff) was employed as Head Drug Registrar and Assessment. The trio were arrested on or about the 18^th November 2002 later taken to Court where the 1^st and 2^nd plaintiff were charged with the offences of Abuse of office and Neglect of Duty and the 3^rd plaintiff was charged with Falsification of the National Drug Authority Drug Register. The charges were withdrawn on 4.04.2005 after the 1^st and 2^nd plaintiffs’ counsel had filed written submissions of a no case to answer and the 3^rd plaintiff was due to make the oral submissions of no case to answer. Following the withdrawal of the suit the plaintiffs brought this action for malicious prosecution on the basis that the prosecution was conducted without proper investigations for which the Attorney General is held liable because the state was aware that there was no evidence to sustain any charges against the plaintiffs. The plaintiffs also claim that they were humiliated, inconvenienced and disgraced for which they claim special and general damages, exemplary damages and costs of the suit.

In his defence the Attorney General denies the plaintiffs’ allegations and contends that the arrest, detention and prosecution of the plaintiffs were lawful and without any malice. He prayed for dismissal of their claims.

At the scheduling conference conducted on 22.08.2007 the fact of the plaintiffs’ employment with National Drug Authority was admitted and so was the fact of their arrest, the charges and remand in Luzira Prison. It was also agreed that the prosecution was conducted by servants/agents /employees of the government in the course of their employment and that the charges were withdrawn by the Director of Public Prosecutions.

The issues framed for trial by this Court were:-

1. Whether the prosecution was malicious or not
2. If so whether the plaintiffs are entitled to the remedies sought.

All the plaintiffs testified at the trial and took Court through the hallowing experience they went through when they were arrested, interrogated by the police, taken to cells where they were mixed with common criminals and taken to Court where after being taken through a trial the DPP withdrew the charges. Throughout his testimony the first plaintiff who has had a distinguished career as a Surgeon could not hold back his tears as he described what he went through during his arrest, interrogation and detention prior to his production in Court.

The defendant adduced the evidence of DR SSEMATIKO GORDON KATENDE the current Executive Secretary/Registrar National Drug Authority who testified that he joined the Authority in 2011 and has had the opportunity of perusing the file in respect of this case. In his testimony he stated that counterfeit drugs are dangerous to the community and that NDA has put measures in place to curb their importation and registration. In specific reference to the drugs in issue he stated that both the report from the National Drug Authority Quality Control Laboratory  and the one from South Africa were to the effect that the drugs were fit for Human consumption.

The three plaintiffs were represented by Mr. Macdosman Kabega while the defendant was represented by Mr. Martin Mwambusya, a State Attorney. At the closure of the cases for the plaintiffs and the defendant both of them correctly stated that there are four ingredients that constitute the tort of malicious prosecution. The ingredients are as follows:-

1. That the defendant instituted and continued proceedings.
2. That the defendant acted without reasonable cause.
3. That the defendant acted maliciously.
4. That the proceedings terminated in favour of the plaintiff.

These ingredients are drawn from the authorities of KAGANE & OTHERS VS ATTORNEY GENERAL & ANOTHER (1969) EA. 643 and EDIRISA SEMAKULA VS ATTORNEY GENERAL HIGH COURT CIVIL SUIT NO. 6 OF 1975 cited by counsel in the submissions. In the instant case there is no contention that the defendant instituted and continued the proceedings which were terminated in favour of the plaintiffs. These two facts were admitted at the commencement of the trial. I will proceed to deal with the other two ingredients.

On whether or not the defendant acted without reasonable cause Mr. Martin Mwambusya cited the case of HERNINMAN VS SMITH (1938) AC 305 where the Court adopted with approval the definition of reasonable and probable cause by Hawkins J in the case of HICKS FAUCKER (1878) QB 169 AT 173 where it was stated as follows:-

            “It is not required of any prosecution that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution. Circumstances may exist in which it is right before charging a man with a misconduct to ask for an explanation but no general rule can be laid down and where a person is satisfied or has apparently sufficient evidence that he has in fact been cheated, there is no obligation to call upon the cheat and ask for an application in as much as to ask for this may only have the effect of causing material evidence to disappear or be manifested”.

Applying the above definition to this case he justified the prosecution of the plaintiffs by citing the evidence of Dr. Ssematiko in which he testified that if the NDA had information that deregistered drugs were being imported in the country they were justified to refer the matter to the C.I.D for investigation and eventual prosecution. But the testimony of Dr. Ssematiko was far from any suggestion that the NDA in general and the plaintiffs in particular had imported any deregistered drugs into the country. On the contrary the testimony of Dr. Ssematiko, the only witness produced by the defence was to the effect that when he studied the two reports in relation to the drugs the subject of the case against the plaintiffs both reports revealed that the drugs were fit for human consumption. This is what he states during his examination in chief:-

“The drugs the subject matter of this suit were contained in two reports. The first report was from the National Drug Quality Control Laboratory. The other report was from South Africa which described their quality. I cannot specifically remember the wording but the effect of the reports was that they were fit for human consumption.”

Under cross examination by the plaintiffs’ counsel he stated as follows:-

“Other than what I have read I do not have any knowledge relating to the arrest and prosecution of the plaintiffs. From my reading of the two reports both indicated that the drugs for which they were taken to Court were fit for human consumption…..”

The defence did not bring any other witness to explain as to why the plaintiffs were prosecuted if the reports regarding the drugs were to the effect that they were fit for human consumption which contradicts the reason given by the defendant for the prosecution of the plaintiffs and unless the two are reconciled there is no way this Court would find that there was any ground for prosecution of the plaintiffs and according to the case of DR. WILLY KABERUKA VS STTORNEY GENERAL 1994 KALR 507 malice may be inferred when a wrongful act is done intentionally without just cause or excuse. In the case of Kaberuka the plaintiff who was an Economic Adviser to the President of Uganda was prosecuted for an offence of Reckless Driving because a motor vehicle attached to his office was involved in an accident. His explanation was that at the time of the accident he was out of the country. This explanation was not investigated. His prosecution ended up in an acquittal and after his acquittal he filed a suit for malicious prosecution. In her judgment Lady Justice Byamugisha (as she then was) after citing a number of authorities made the following statement:-

“In other words the person preferring the charge or laying a complaint before the Court should have an honest belief in the guilt of the person charged based upon reasonable grounds depending on the state of the circumstances which if they are true would lead any prudent and cautious man placed in the position of the prosecutor to the conclusion that the person charged is probably guilty of the crime imputed. As for the test to be applied this was set out in the case of KAGAME & OTHERS V- ATTORNEY GENERAL & ANOTHER [1969] E.A 643 where the Court said at page 646:-

“the question as whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of an objective test. That is to say to constitute reasonable and probable cause, the totality of the material within the knowledge of the prosecutor whether that material consists of facts discovered by the prosecutor or information which has come to him or both, must be such as to be capable of satisfying an ordinary reasonable prudent and cautious man to the extent of believing that the accused is probably guilty. If and in so far as that material is based upon information, the information must be reasonably credible such that an ordinary prudent and cautious man could honestly believe it be substantially true and to afford a reasonably strong basis for the prosecution.””

Applying the above test to this case there was no basis for the prosecution if as Dr. Ssematiko testified there was nothing wrong with the drugs in question. Dr. Ssematiko also testified that there are checks and balances to prohibit entry and use of substandard drugs. The measures include a Dossier Valuation pertaining to how each drug is manufactured, stored and used. This is done before the product is allowed on the Ugandan market. The factory is also inspected to confirm that what is submitted in writing is what takes place. There is verification of the proforma invoice to confirm that the product which was registered is the one imported. PNFs of entry are checked for any deliverance to confirm that they are the ones verified on the proforma invoice. This illustrates the point that even if the drugs themselves had had a problem there was need to investigate the role of each of the plaintiffs before holding them accountable in view of the measures in place that are supposed to ensure delivery of drugs that are safe for human consumption. The plaintiffs were dragged to Court without any investigations and like in the case of William Kaberuka where it was found that the prosecution was malicious for failure to connect the plaintiff with the Traffic Accident Court finds that for the failure to investigate the case to establish not only that the drugs were unfit for human consumption and that the three plaintiffs were criminally liable their prosecution was malicious.

On damages each of the plaintiffs claims special damages of which the items are travel expenses to Court at Buganda Road, Katwe Police station and Luzira Prison and legal expenses incurred during the trial of the case at Buganda Road. This Court is satisfied that each of the plaintiffs has proved the expenses as pleaded. The first plaintiff will be awarded special damages in a sum of shs 4.440.000=, the second plaintiff will be awarded a sum of shs 9.620.000= and the third plaintiff special damages in a sum of shs 3.020.000-.

On general damages the Court in the case of William Kaberuka (supra) considered a number of factors before arriving at an appropriate award. The factors included the period that the plaintiffs spent attending to his criminal trial on charges that were hardly investigated by the defendant’s servants, the indignity and humiliation he suffered and the injury to his feelings especially the possibility of serving a sentence. The plaintiff’s status in society was also considered. In the case of HENRY MUNYANGANIZI VS- ATTORNEY GENERAL CIVL SUIT NO. 659 OD 1996 (unreported) Justice P.K Mugamba took into consideration a number of factors as stated hereunder:-

“The plaintiff was a Senior Officer in Government. He was Uganda’s Commissioner for Immigration. He had also served as Director of Special Branch, not to mention other responsibilities in the Police Force. He is well heeled in the circles of the Educated in this country and prided himself in and unblemished reputation he had built over the years as a person who was incorruptible and trusted. Prolonged criminal proceedings put an end to all that even though they came to naught in the end. He comes to Court seeking redress for the pain and suffering he was left to undergo. Damages cannot be adequate as relief but a sum of 50.000.000= as an award shall go some way towards redress.”

I agree that the above factors are of paramount consideration in determining in monetary terms an award of damages that would in some measure atone the plaintiffs for the damages both physical and mental that they suffered from the time of their arrest and prosecution todate when they are still in Court as a consequence of a prosecution that should not have been undertaken against them in the first place. All the plaintiffs are accomplished professionals in their own right. At the time he testified in Court on 25.03.2010 DR. NGANWA WILLIAM (1^st plaintiff) stated that he was a sixty nine year old Senior Consultant Surgeon who in the year 2003 had been picked from his office for interrogation by the Criminal Investigation Department where he was interrogated on a number of occasions. During the interrogation he was asked about drugs of which he explained that he did not have details. This was okay. But his interrogation with an officer placing a gun on a table, a lady walking in and out with a pistol on another occasion, his being denied lunch when he explained that he was a diabetic was unwarranted even if he was a criminal which he was not because he is presumed innocent till proved guilty. His interception at Entebbe Airport as he was heading for Botswana for a Regional conference could have been avoided because if he was on Police Bond the investigators did not have to follow him to the Airport. These are but a few incidents that demonstrate the highhanded manner in which the plaintiff was handled. Such experience has a traumatising effect and the witness was weeping as he testified about all the experiences he went through.

At the time DR. JOHN CHRISESTOM LULE (second plaintiff) testified on 19.04.2010 he stated that he was an Associate Professor of Obstetrics & Gynecology at Makerere University, Mulago Medical School and a Consultant obstetrician and gynecologist at Mulago Hospital. All this was achieved through a number of post graduate courses which he attended after graduation from Makerere in 1975. Like the 1^st plaintiff he was treated in a highhanded manner when no exhaustive investigations into his involvement into the importation of fake drugs had been done and it is only after a prolonged trial that the prosecution withdraws the case after submission of no case to answer. This was after his reputation had been dealt a heavy blow and this is the basis for an award of general damages in addition to the factors in the case of Henry Munyanganizi. MR. FRANCIS OTIM (3^rd plaintiff) is a relatively young Pharmacist. He has a long career ahead of him. This career could have been ruined by this prosecution simply because the investigations that led to his prosecution were shallow. He like Dr. Nganwa suffered the indignity of having his flight to Botswana to attend a conference intercepted. He also went through the same harrowing experience of interrogation which seems to have served no purpose because his explanation like that of his co-plaintiffs was ignored. If the investigators had taken the explanations of the plaintiffs as regards their role in importation of the drugs and the reports that Dr. Ssematiko testified to, the career of this young pharmacist would not have been put in jeopardy as it happened in this case.

The plaintiffs also sought exemplary damages which according to the case of Henry Munyanganizi Vs Attorney General (supra) may be awarded where there is oppressive, arbitrary or unconstitutional action by the servant of the government. From the findings of this Court the requirement for this award is satisfied by the circumstances of this case. As already stated, with the evidence of Dr. Ssematiko available to the organs that carried out the investigations and prosecution of the plaintiffs their actions can only be described as oppressive and arbitrary and for that reason all the plaintiffs are entitled to exemplary damages.

In the circumstances judgment is entered for the plaintiffs as follows:-

1. The 1^st plaintiff is awarded a sum of shs 4.440.000= (four million four hundred forty only) as special damages.    

1.  The 2^nd plaintiff is awarded a sum of shs 9.620.000= (nine million six hundred twenty only) as special damages.

1.  The 3^rd plaintiff is awarded a sum of shs 3.020.000= (three million twenty only) as special damages.

1. Each of the plaintiffs is awarded a sum of 65.000.000= (sixty five million only) as General damages.

1. Each of the plaintiffs is awarded a sum of 15.000.000= (fifteen million only) as Exemplary damages.

1. Interest of 20% on (a) (b) (c) (d) (e) from the date of judgment till payment in full.

1. Costs of the suit.

Eldad Mwangusya

J U D G E

28.09.2012