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
(1st plaintiff) was employed as Chairman National Drug Authority, DR. LULE JOHN (2nd
plaintiff) was employed as Information & Training Officer while MR. OTIM FRANCIS (3rd
plaintiff) was employed as Head Drug Registrar and Assessment. The trio were arrested on or
about the 18th November 2002 later taken to Court where the 1st and 2nd plaintiff were charged
with the offences of Abuse of office and Neglect of Duty and the 3rd plaintiff was charged with
Falsification of the National Drug Authority Drug Register. The charges were withdrawn on
4.04.2005 after the 1st and 2nd plaintiffs’ counsel had filed written submissions of a no case to
answer and the 3rd 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,
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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charges were withdrawn by the Director of Public Prosecutions.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
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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:-
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“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…..”
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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 VATTORNEY 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
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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-.
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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 (1st 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
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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 1st 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 (3rd 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.
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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:a) The 1st plaintiff is awarded a sum of shs 4.440.000= (four million four hundred forty
only) as special damages.
b) The 2nd plaintiff is awarded a sum of shs 9.620.000= (nine million six hundred twenty
only) as special damages.
c) The 3rd plaintiff is awarded a sum of shs 3.020.000= (three million twenty only) as
special damages.
d) Each of the plaintiffs is awarded a sum of 65.000.000= (sixty five million only) as
General damages.
e) Each of the plaintiffs is awarded a sum of 15.000.000= (fifteen million only) as
Exemplary damages.
f) Interest of 20% on (a) (b) (c) (d) (e) from the date of judgment till payment in full.
g) Costs of the suit.
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Eldad Mwangusya
JUDGE
28.09.2012
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