THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA AT MENGO
(CORAM: TSEKOOKO, KAROKORA, MULENGA,
KANYEIHAMBA AND KATUREEBE, JJ.SC).
CIVIL APPEAL NO. 8 OF 2006
ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::: APPELLANT
SAM SEMANDA::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
[Appeal from the decision of the Court of Appeal at Kampala,
(Mukasa-Kikonyogo, DCJ, Kitumba and Kavuma, JJ.A) dated
23rd December, 2005 in Civil Appeal No. 22 of 2005]
JUDGMENT OF TSEKOOKO, JSC
This appeal arises from the decision of the Court of Appeal which reversed the judgment of the High Court by Mugamba, J, in which he dismissed a suit of the respondent, Sam Semanda.
Sam Semanda filed a suit against the Attorney General, the appellant, alleging that UPDF soldiers, as servants of the appellant, had shot at and damaged his omnibus registration No. 600 UCC on 26th October, 1999. He claimed for special and general damages and also for costs. The trial judge dismissed the suit with costs. The respondent appealed to the Court of Appeal, which set aside the decision and orders of the trial judge, and awarded to the respondent a sum of Shs. 127,420,000/= as special damages with interest at the rate of 45% p.a., from the date of filing the suit till payment in full. The Court also awarded him general damages in the sum of Shs. 10,000,000/= with interest at the rate of 45% from the date of judgment till payment in full. The court further awarded to the respondent taxed costs in that court and in the trial court, the costs to bear interest at the rate of 6% p.a. from 23rd December, 2005. The appellant has now appealed against the decision and orders of the Court of Appeal.
At the commencement of the trial, the judge framed four issues for his decision. The respondent, as plaintiff, called four witnesses. He himself testified as PW1. The other three witnesses included Wasswa Khalid (PW4), the driver, and Patrick Sempiima, PW2, the conductor, of the respondent’s Omnibus. At the close of the plaintiff’s case, the appellant, for an unexplained reason, opted not to offer any evidence in his defence although he had filed a written statement of defence in which he denied liability and pleaded, an alternative averment in defence alleging that if the respondent’s bus was shot at and destroyed by UPDF (soldiers), the soldiers were on a floric of their own when they shot at and destroyed the bus.
There is no dispute that PW4 was the driver of Omnibus registration No. 600 UCC and PW2 was its conductor. It is in evidence that PW4 had driven the bus along the same route from 1995 till the day the bus was shot at and damaged. According to the two witnesses, the bus plied between Kampala and Bwera Border Township which is in Kasese District. On the fateful day, the bus reached the place of the shooting between Kikorongo and Katunguru at 6:00 p.m. It was still day time. The two witnesses saw soldiers wearing UPDF uniforms. According to PW4:
“I know they were UPDF soldiers because I saw them clearly in their uniform. It was a clear day. I know their uniform. The soldiers used to be there in the area because there was a detatch nearby. The incident took place in October, 1999. I was leaving Kampala for Bwera. When I reached a place between Kikorongo and Katunguru, I saw soldiers ahead of us. When I approached them, I heard bullets hitting the bus. The soldiers were on the right side of the road, moving. The bus was running and the bus was later hit by a rocket propelled grenade. The bus was able to move until it reached Kikorongo at a military road block. That is where we stopped.”
This evidence, which was not contradicted, was corroborated substantially by the testimony of PW2, the conductor of the bus. The only apparent contradiction between these two witnesses was the number of soldiers. The learned trial judge held that whereas PW2 saw only two soldiers, PW4 saw 50 soldiers. Further, the learned trial judge held that because PW4 said he had once seen ADF rebels in the area, it must have been the rebels who shot at the bus. He again opined that the respondent should have adduced independent evidence to prove that shooting was done by UPDF soldiers.
In the Court of Appeal, Kavuma, JA, who wrote the lead judgment, found that the “learned trial judge applied a higher standard than required by law in civil cases.”
He also found, correctly in my view, that the evidence of PW2 and PW4 established that it was UPDF soldiers who shot at and damaged the respondent’s bus and that, therefore, the Government was vicariously liable for the acts of those soldiers. The other two members of the Court of Appeal concurred.
This appeal is based on four grounds. Counsel for both sides filed written arguments.
Although counsel for the appellant stated that they would argue grounds 1, 2 and 3 together, they actually argued them separately. I will consider them separately. Ground one was framed as follows:-
The learned Justices of Appeal erred in law and in fact in
Holding that there was sufficient evidence to identify
Those who shot at the bus as UPDF soldiers whereas not.
I understand this ground to complain that the evidence available did not establish that UPDF soldiers shot at the bus.
In his written submissions, the appellant in effect, agrees that PW2 and PW4 are key witnesses as they were at the scene since they were in the bus.
The Attorney General referred to passages from the record of the evidence of the two witnesses to show apparent conflict between their evidence. He criticized the Court of Appeal for its findings and contended that there was no evidence on the record indicating that the bus slowed down at any one time during the shooting incident to enable the two witnesses observe the assailants at close range so as to identify them as UPDF soldiers.
For the respondents, Mrs. Basaza Wasswa supported the decision of the Court of Appeal contending that the court considered the evidence on the record, which evidence pointed at the UPDF soldiers as persons who shot at and damaged the bus. She submitted that the evidence of PW4, and of PW2, established that it is UPDF soldiers who shot at the bus.
A perusal of the record shows that the learned trial judge dismissed the suit after answering the first issue in the negative. That issue was framed in the words -
“Whether the plaintiff’s bus No. 600 UCC was shot
at by the Uganda Peoples Defence Forces and or
their agent, or authorized persons”.
The learned judge correctly found that PW2 and PW4 were the only persons who testified that they were present at the time the bus was shot at. The judge summarized the evidence of the two eye witnesses, and apparently believed PW2 and PW4 that the people who shot at the bus wore uniforms similar to uniforms worn by UPDF soldiers. The learned judge, however, concluded that it is not UPDF soldiers who shot at the bus, for the following reasons.
No independent evidence of who the persons who shot at the bus were because-