IN THE HIGH COURT OF UGANDA SITTING AT GULU

Reportable
Civil Appeal No. 045 of 2018
In the matter between

ODIYA RICHARD APPELLANT

And

1. OKELLO JOHN BOSCO

Heard: 22 July 2019

Civil Procedure: — General damages for Assault causing Actual Bodily Harm — Whereas
when an order of compensation in a criminal trial is made the quantum may be determined by
taking into account the nature of crime, the injury suffered, the justness of claim by the victim,
the ability of accused to pay / the means of the offender, whether the criminal court will be
involved in a long process of assessment of the loss, whether civil proceedings have been taken
and, if so, whether they are being pursued and other relevant circumstances, the principle in
civil matters is restituto in integrum — The idea behind directing the convict to pay
compensation to the complainant is to afford immediate relief so as to alleviate the
complainant’s grievance.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
STEPHEN MUBIRU, J.
Introduction:

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[1] The appellant sued the respondents jointly and severally for recovery of general
and special damages for personal injury, interest thereon and the costs of the
suit. His claim was that on 7th September, 2015, at Oryang Trading Centre,
Lagoro sub-county, Kitgum District the respondents assaulted him thereby
inflicting upon him actual bodily harm. As a result of that assault, he sustained; a
deep incised wound (bite) on the side of his left hand, tenderness of the neck,
strain in the limbs and multiple soft tissue injuries on various parts of his body.
On medical examination, the injuries were classified as "harm." He reported the
incident to the police whereupon the respondents were arrested, prosecuted and
convicted of the offence of Assault Occasioning Actual Bodily Harm C/s 236 of
The Penal Code Act. Each of them was sentenced to a fine in the sum of shs.
500,000/= or one years' imprisonment in default. The appellant then filed the suit
for recovery of shs. 2,200,000/= in medical and related expenses, and shs.
450,000/= per month from 7th September, 2015 until the date of judgment as
special damages for lost income resulting from the loss of his job, consequent
upon the injuries he suffered.

[2] In their joint written statement of defence, the respondents refuted his claim and
made bare denials of the appellant's averments.

The respondent's evidence in the court below:

[3] In his defence as D.W.1, the 1st respondent Okello John Bosco admitted being
convicted for the assault and sentenced to a fine of shs. 500,000/= or one year's
imprisonment in default. The appellant was unemployed at the time of the
assault. D.W.2 Aparo Irene the 2nd respondent admitted being convicted for the
assault and sentenced to a fine of shs. 500,000/= or one year's imprisonment in
default. The assault arose out of a land dispute. The documents produced by the
appellant as proof of medical expense are a fraud. The appellant is unemployed.
The time served in prison should be considered enough atonement. His claim or

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 additional compensation should be rejected. The other two respondents did not
testify.

The appellant's evidence in the court below:

[4] The appellant Odiya Richard testified as P.W.1 and stated assaulted by ten
people who included the respondents. He was assaulted when he went with
police officers to cause their arrest for threatening him with violence, over a land
dispute. P.W.2 Okogo Simon; injuries stained by the appellant included a deep
cut on the am suspected to be a bite, a swelling on the neck, injury on the right
pinna, left deltoid (a thick triangular muscle covering the shoulder joint and used
for raising the arm away from the body), and the right hip. He classified the injury
as harm. The injuries were minor. They are not the type of injuries that would
require a long period of medication.

Judgment of the court below:

[5] In his judgment, the trial Magistrate stated that the respondents were sentenced
to an order of compensation in the sum of shs. 500,000/= each or one years'
imprisonment in default. They failed to pay the compensation and served the
term of imprisonment. P.W.2 testified that the injuries sustained by the appellant
were minor. He sustained a deep cut wound on the hand and a swelling on the
neck. They could not have caused such a degree of pain as described by the
appellant to the extent of losing his job. He did not sustain any permanent injury.
He therefore is not entitled to general damages. The court agrees with the 2nd
respondent that the term of imprisonment was sufficient atonement. The amounts
claimed as special damages are unfounded. It includes expenditure incurred in
prosecution of the criminal case which expenses are borne by the police. In the
alternative, they can be deemed to have been covered in the order of
compensation, which the respondents failed to meet and served a term of
imprisonment instead. The receipts he tendered in evidence as proof of medical

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 expenses may not be related to the injuries he sustained since P.W.2 testified
they were minor. The Magistrate ordered compensation and in default he gave a
sentence which was duly served, and "I believe this covered the complainant's
claims on the same as well. I will therefore dismiss his claims with costs," he
concluded.

The grounds of appeal:

[6] The appellant was dissatisfied with the decision and appealed to this court on the
following grounds, namely;
1. The trial Magistrate exercised a lot of bias during the trial of the above civil
suit.
2. The trial Magistrate erred in law and fact when he dismissed the suit on
grounds that the defendants had already served their sentences in the
above case when it was tried as a criminal matter against the
respondents.
3. The trial Magistrate erred in law and fact when he awarded costs of the
dismissed suit.

[7] Before the appeal could be heard, the court was notified that the appellant had
been murdered by the respondents when, together with the court process server,
he went to serve them with a hearing notice for the appeal. The court therefore
invoked the provisions of Order 24 rules 1 and 3 (1) of The Civil Procedure
Rules, and section 222 of The Succession Act, to grant his brother Mr.
Komakech Alex Anselm, letters of administration limited for the purpose of
representing the deceased in this appeal, touching the matters at issue in the
appeal, until a final decree shall be made in it, and carried into complete
execution.

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Arguments for the appellant:

[8] At the hearing of the appeal, Mr. Komaketch Alex, argued that since the
respondents were convicted at the criminal trial, they were also under the legal
obligation to compensate the appellant for the damage he suffered as a result of
their unlawful attack on him. The appellant should therefore be awarded general
damages. The respondents did not turn up at the hearing of the appeal.

Duties of a first appellate court:

[9] This being a first appeal, it is the duty of this court to re-hear the case by
subjecting the evidence presented to the trial court to a fresh and exhaustive
scrutiny and re-appraisal before coming to its own conclusion (see Father
Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000; [2004]
KALR 236). In a case of conflicting evidence the appeal court has to make due
allowance for the fact that it has neither seen nor heard the witnesses, it must
weigh the conflicting evidence and draw its own inference and conclusions (see
Lovinsa Nankya v. Nsibambi [1980] HCB 81).

[10] In exercise of its appellate jurisdiction, this court may interfere with a finding of
fact if the trial court is shown to have overlooked any material feature in the
evidence of a witness or if the balance of probabilities as to the credibility of the
witness is inclined against the opinion of the trial court. In particular this court is
not bound necessarily to follow the trial magistrate’s findings of fact if it appears
either that he or she has clearly failed on some point to take account of particular
circumstances or probabilities materially to estimate the evidence or if the
impression based on demeanour of a witness is inconsistent with the evidence in
the case generally.

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All the grounds of appeal will be considered concurrently.

[11] The case before the trial court was a personal injury claim. A personal injury
claim is based upon an injury that occurs to an individual. The person with locus
standi in a personal injury claim is the actual person who suffered the injury. At
common law, when a personal injury to the plaintiff resulted in death, no action
for the personal injury survived, and any such action pending at the time of death
abates (see Baker v. Bolton, 170 Eng. Rep. 1033). However, under section 11
(1) of The Law Reform (Miscellaneous Provisions) Act, save for actions for
defamation, seduction, inducing one spouse to leave or remain apart from the
other, or claims for damages on the ground of adultery, all causes of action
subsisting against or vested in a deceased person survive against, or, as the
case may be, for the benefit of his or her estate.

[12] Having perused the record of proceedings, I find that the court below misdirected
itself when it failed to recognise that one event can give rise to both criminal and
tortious liability. Assault and battery are intentional torts, and thus can serve as
the basis for a civil suit demanding compensation in the form of monetary
damages. At the same time assault and battery are also crimes, under The Penal
Code Act implying that they can also result in prosecution by the state and, if the
accused is found guilty, can result in a term of imprisonment or a fine or both.

[13] In the judgment of 7th April, 2016 delivered in the criminal trial where the
respondents were the accused (Kitgum Grade One Magistrate's Court Criminal
case No. 817 of 2015) it is stated that each was sentenced to a "fine" and not
"compensation." The trial Magistrate thus misconstrued the import of that
decision. There was no order of compensation in the criminal trial.

[14] Even if that order had been one for compensation, section 197 of The
Magistrates Courts Act confers discretion upon a trial court, in addition to any
other lawful punishment, to order the convicted person to pay another person

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 such compensation as the court deems fair and reasonable, where it appears
from the evidence that, that other person, whether or not he or she is the
prosecutor or a witness in the case, has suffered material loss or personal injury
in consequence of the offence committed and that substantial compensation is,
in the opinion of the court, recoverable by that person by civil suit. The idea
behind it is that a victim of crime in a situation where the amount involved is
readily ascertained and acknowledged by the accused should not be forced to
undertake the often slow, tedious and expensive civil proceedings against the
very person who is responsible for the injury.

[15] The idea behind directing the convict to pay compensation to the complainant is
to afford immediate relief so as to alleviate the complainant’s grievance. It is a
measure of responding appropriately to crime as well as reconciling the victim
with the offence. However, courts are slow to make an assessment and award of
substantial amounts as compensation, without clear evidence of a definite
amount by admission or other proof, otherwise it risks descending into purely civil
consequences of the facts that constitute a crime. An order of compensation
equivalent to a judgment in a civil suit is an open invitation to resort to the
criminal process mainly for the purpose of obtaining the civil remedy.

[16] The quantum of compensation may be determined by taking into account the
nature of crime, the injury suffered the justness of claim by the victim, the ability
of accused to pay and other relevant circumstances. A relevant consideration
would be whether civil proceedings have been taken and, if so, whether they are
being pursued. Other factors that enter into the exercise of the discretion are; the
means of the offender, and whether the criminal court will be involved in a long
process of assessment of the loss (see R. v. Zelensky, [1978] 2 S.C.R. 940 at
961). The amount determined by court should exclusively be aimed at remedying
the damage caused through the wrongful act, and not conceived as an
exemplary measure. The aim should be to redress only direct damage and loss

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 resulting from the illegal act, leaving out those damages and losses which are too
indirect or remote.

[17] The principle in civil matters is different; it is restituto in integrum. The plaintiff has
to be restored as nearly as possible to the position he/she would have been had
the injury complained of not occurred (see Dharamshi v. Karsan [1974] EA 41).
Unlike a civil court which when awarding general damages is bound to wipe out
the legal and material consequences of the wrongful act by re-establishing the
situation that would exist if that act had not been committed, irrespective of the
defendant’s ability to pay, a criminal court is required to take into account the
ability of the convict to pay the compensation ordered. A criminal court will
therefore order compensation intended to re-establish the situation that would
exist if that act had not been committed, to the extent of the convict’s ability to
pay.

[18] The appellant adduced evidence to show that he sustained injuries as a result of
the assault. The trial court was obliged to make an assessment and make an
appropriate award of general damages. Since the court below failed in that duty,
it is incumbent upon this court to rectify the anomaly. In doing this I have been
guided by a judgment delivered on 30th April, 2009 in the case of John Ogil v.
Attorney General, H.C. Civil Suit No.94 of 2004, shs. 4,000,000/= where general
damages were awarded for personal injuries sustained in the shootout incident.
During the incident, the plaintiff sustained serious gunshot wounds on posterior
left thigh, soft tissues injury with no fracture. The plaintiff was hospitalised for 11
days, resuscitated before being operated upon to remove the bullet that had
lodged in his body together with dead tissues. He lost a lot of blood, suffered pain
and loss of sensation at the site of injury. He developed scars. His disability was
put at 10%.

[19] Taking into account the transient nature of the injuries sustained by the appellant,
the facts that he was never admitted in hospital nor underwent any surgery, but

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 considering the effect of inflation, I consider the sum of shs. 1,500,000/= to be
adequate compensation as general damages. As regards the claim for special
damages, these are not awarded to enrich a plaintiff far beyond his or her actual
losses nor should the plaintiff get far less than his or her actual loss. Therefore,
when a claim for special damages is made, the plaintiff is required to provide
evidence in support of the claim and to adduce facts upon which the damages
could be assessed. Special damages must be specifically pleaded and proved.
Special damages are out-of-pocket expenses that can be determined by adding
together all the plaintiff's quantifiable financial losses. These losses or expenses
must be proven with specificity. The court though will disregard expenses that
were not necessary or that are unreasonable.

[20] Public prosecutions are conducted by the state at the costs of the state. The
appellant's expenditure on criminal prosecution was unjustified and is accordingly
rejected. As regards expenditure on treatment, the appellant adduced receipts of
October, 2015 to 2017 yet the injury was sustained on 7th September, 2015. Due
to its transient nature, the appellant could not have continued with treatment for
the next two years. That evidence therefore is rejected since there is no proof
that the course of treatment was for the injuries sustained in the assault. The only
receipt that appears to be contemporaneous with the injury is that of 26 th
October, 2015 in the sum of shs. 15,000/= for the medical report. That amount is
allowed.

Order :
[22] In the final result, the appeal is allowed. The judgment of the court below is set
aside and instead judgment is entered for the appellant against the respondents
jointly and severally for;
a) General damages of shs. 1,500,000/=
b) Special damages of shs. 15,000/=
c) Interest on (a) and (b) above at the rate of 8% per annum from the date of
judgment until payment in full.

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 d) The costs of the appeal as well as those of the court below are awarded
to the appellant.
_____________________________
Stephen Mubiru
Resident Judge, Gulu

Appearances
For the appellant : Mr. Komaketch Alex (the appellant's legal representative).
For the respondent : The Respondents.

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