Nabirye & Another v Mukasa (Civil Appeal 23 of 2022) [2024] UGHC 572 (9 May 2024)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT JINJA

HCT-03-CV-CA-0023-2022

(ARISING FROM CIVIL SUIT NO.062 OF 2018)

1. NABIRYE DAMALIE

2. ASIRIKE NELSON ::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS

VERSUS

MARY MUKASA ::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

Motor Accident Claim-

Held: Appeal allowed. The Appellants are awarded the reliefs sought in the lower court with additional orders from this Honourable Court.

BEFORE: HON. JUSTICE DR. WINIFRED N NABISINDE

JUDGMENT ON APPEAL

The Appellants being dissatisfied and aggrieved by the decision/Judgment of His Worship Nsobya Ronald Kamya Magistrate Grade One of the Chief Magistrate’s Court of Jinja, delivered on the 25^th day of February, 2022, appealed to this Honorable Court against the whole decision/Judgment and Orders on grounds that the Learned Trial Magistrate erred in law and fact: -

1. When he found that the Respondent was not liable in negligence, hence arriving at a wrong decision.

2. By holding that ownership and registration of motor vehicle No. UAD 346F in the names of the Respondent does not create a legal duty hence causing miscarriage of justice.

3. By holding that the Respondent was not liable in vicarious liability for whoever was driving motor vehicle No. UAD 364F, hence cause miscarriage of justice.

4. When he failed to properly evaluate evidence on record as whole and thereby arrived a wrong conclusion that the Respondent was not liable for the accident caused by motor vehicle No. UAD 364F, hence a wrong decision.

They prayed that:-

1. Appeal be allowed.

2. The decision /Judgment and decree of the trial Magistrate be quashed and set aside.

3. Costs of the Appeal and of the lower court, be awarded to the Appellant

THE BACKGROUND

The brief facts according to learned counsel for the Appellant The Appellants filed Civil suit NO.62 of 2018 in Chief Magistrates Court of Jinja at Jinja on cause of action arising from Negligence seeking for recovery of special damages of Ug. Shs .12,000, 000/= (Twelve Million Uganda Shillings), General damages, Interest on Special and general damages, costs for the suit.

The plaintiffs' case is that on 20/1/2018 at around 12:50 hours at Buwanga along Jinja high way, in Mayuge District, the 2^nd Plaintiff/Appellant who was travelling in motor vehicle Reg. No UAN 515G black in color belonging to the 1^st Appellant and being driven by the 2^nd Appellant was knocked by the defendant's Motor vehicle Reg. No. UAD 346F Toyota corona. The Appellants contended that the Respondent's motor vehicle was being driven recklessly and negligently by the defendant and or her agents, and as a result, the Plaintiff's motor vehicle was extensively damaged to almost being written off.

That as a result of the knocking, the 2^nd Plaintiff/Appellant sustained several and multiple injuries and was admitted in hospital. The defendant and or her agents ran away after the knocking and made no efforts to settle the matter. The plaintiffs thus filed the suit in Negligence and sought remedies against the Defendant and in proving their case presented 5 (five) witnesses who gave their evidence through witness statements.

The Respondent filed a Written Statement of Defence denying liability and claiming to have sold the motor vehicle to someone else and that the Plaintiffs/Appellants knew the Driver. The Appellants filed a reply to the defence maintaining that the Respondent is liable and that defence which was filed was just evasive and general denials without particulars and prove of alleged sale.

The Parties were ordered to file Joint Scheduling Memorandum, their witness statements and Trial bundle on 23/8/2019. Joint Scheduling Memorandum was filed as signed by both parties and Plaintiff/Appellants filed their witness statements. The Defendant kept failing to attend Court and on 12/3/2020 Court granted another chance to file the Witness Statement and trial bundle, but the Defendant failed.

On 8/11/2021, due to absence of Defendant and her Lawyer, court allowed the Plaintiffs/Appellants to proceed exparte and they presented three (3) witnesses namely Nabirye Damalie (PW2), Asirike Nelson (PW2, and P.C No. 62127 Nankwangwa Racheal (PW3) and identification documents exhibited as follows;

1. Receipts dated 21/1/2018 - SN/98 and invoice dated 20/1/2018 marked PE II respectively.

2. Receipt dated 20/1/2021 marked as PE2 (Serial No.92).

3. Demand letter marked PE3.

4. Admission slip of Bunawoma Clinic admitted and marked as PID ii since there was original.

5. Invoice dated 20/3/2018 and receipt of 23/3/2018 collectively marked as PEX 4.

6. Abstract of Particulars of accident admitted as exhibit PES.

7. PF3 admitted and marked PEX.6.

8. PF28 and search report admitted and marked P.I. D2

9. Logbook as PID3.

After hearing the evidence on 8/11/2021 and 22/11/2021, Court directed the plaintiff to file written submissions. The Respondent/Defendant filed Miscellaneous Application No.115 of 2021 seeking to set aside the exparte proceedings. The same was dismissed for non-service and want of prosecution. Another application by Respondent vide Miscellaneous Application No. 117 of 2021 was filed see came up for hearing on 17/12/2021 at 9:00 am.

Upon Parties appearing before the Trial Magistrate, the Respondent agreed to settle the matter by compensating the Appellants to the tune of Ug. Shs. 6,000,000/= (Six Million Uganda Shillings Only) as full and final settlement and the consent was recorded by court pending formal execution and sealing where upon the matter was given a mention date to confirm payment and sealing of consent by court.

On the date fixed for mention, the money had not been paid and the Respondent together with her Lawyers were nowhere to be seen. The Trial Magistrate informed the Appellants that since evidence and submission are on court record, he shall proceed to deliver Judgment on its merits. The Judgment was delivered on 25/2/2022 dismissing the Plaintiffs'/Appellants' case that it lacked merit.

The Appellants/Plaintiffs being dissatisfied with the decision of the Trial Magistrate Grade one brought this appeal challenging the entire Judgment and Orders of the trial court at Jinja.

From my own analysis, the Appellants / Plaintiffs filed Civil Suit No.62 of 2018 for negligence resulting into extensive damage on the 1^st Plaintiff's’/1^st Appellants’ car motor vehicle No. UAN 515G, Toyota Lexus; and further resulting into the 2^nd Plaintiff/2^nd Appellant sustaining of severe and multiple. The Plaintiffs/ Appellants jointly and or severally claimed from the Defendant special damages, general damages, interest and costs of this suit.

They contended that the Defendants vehicle was being driven recklessly and negligently by the Defendant/Respondent and or her agents from lganga route towards Jinja route as the Defendant's motor vehicle was being driven or running at a high speed. That as a result of the said knocking/accident the 1^st Plaintiff’s / 1^st Appellants’ motor vehicle was extensively damaged to almost being written off as confirmed by the report of the Inspector of Vehicles.

Particulars of Defendant's Negligence

1. Driving motor vehicle Reg. No. UAD 364F Black in colour at 12:50 at a very high speed.

2. Failing to control, avoid collusion or apply brakes and thereby colliding with the 1^st Plaintiff's motor vehicle, resulting into extensive damages to the Plaintiff's motor vehicle and or causing insurance to the occupant the 2^nd Plaintiff.

3. Failing to take careful watch and observe traffic and traffic regulations while on road by overtaking several running vehicles and without following the traffic regulation and guidelines.

4. Driving with speed in wrong lane on a high way and knocking the Plaintiff's motor vehicle causing injuries to the occupant, the 2^nd Plaintiff.

5. The Plaintiff avers and contends that the aforesaid accident and injuries was foreseeable consequences of the Defendant's negligent and reckless conduct of driving having not followed the traffic regulations and at very high speed, in a wrong lane and overtaking several running vehicles and without following traffic guidelines.

6. The 1^st Plaintiff shall rely on Police Abstract Report and accident sketch plan all attached as annexure "B" and "C" above.

In the alternative, the Plaintiff shall invoke the evidential rule of Res ipsa loquitor to establish the defendant's negligence.

That due to the aforesaid accident/collision as a result of the Defendant's negligence/reckless acts, the 1^st Plaintiff/1^st Appellant claims for special damages for repairs of the motor vehicle and the 2^nd plaintiff claim special damages in respect of medical expenses and all Plaintiffs claim general damages, interest and costs of the suit. They contended that the Defendant is liable as she is the owner of the motor vehicle No. UAD 346F, Toyota Corona. (A copy of the search report from URA and insurance cover is hereto attached and marked "E" and "E" respectively).

Special damages are particularized as follows: -

1. Ug. Shs. 8,500,000/= (Eight million five hundred thousand shillings only) as for mechanical repairs of the motor vehicle (Profoma invoice from Green lanes motor garage are hereto attached and marked as annexure).

2. Ug. Shs. 1,500,00o0/= (One million five hundred thousand shillings only) expenses for carrier from the crime scene to Police and from Police to 2" Plaintiff's residence (Copies of the receipts are hereto attached as F and F2 respectively).

3. Ug. Shs. 2,000,000/= (Two million shillings only) as medical expenses to Asirika Nelson (Copies of medical receipts are hereto attached).

Total

12,000,000/=.

The Appellants / Plaintiffs further contended that they have suffered an inconvenience for non-use of their vehicles and have resorted into hiring. That the vehicle continues to depreciate as it is parked without repairs, hence a claim for general damages. That some money has been spent for medical treatment, hiring a carrier, hence a claim for interest as a result of the accident.

In her Written Statement of Defence, the Defendant/ Respondent denied all the allegations alleging that she has sold off the motor vehicle sometime in 2011; an that it was no longer in her possession at the time of the accident.

REPRESENTATION

When this matter came before me for hearing, the Appellant was represented by learned Counsel Mr. Nuwamanya Balaam of M/S. Pearl Advocates & Solicitors, while counsel for the Respondent never appeared to defend the appeal. The appeal proceeded on Written Submissions, but the Respondents didn’t comply.

THE LAW

It is now settled law that it is the duty of the Plaintiff to prove his or her case on the balance of probabilities. In relation to the onus of proof in civil matters, the burden of proof lies on he who alleges a fact and the standard is on the balance of probabilities, and not beyond reasonable doubt as in criminal case. It is provided for in Sections 101, 102, and 104 Evidence Act and is discharged on the balance of probabilities. The standard of proof is made if the preposition is more likely to be true than not true.

The standard of proof is satisfied if there is greater than 50% that the preposition is true and not 100%. As per Lord Denning in Miller v Minister of Pension [1947] ALLER 373; he simply described it as ‘more probable than not.” This means that errors, omission and irregularities that do not occasion a miscarriage of justice are too minor to prompt the appellate court to overturn a lower court decision. See Festo Androa & Anor vs Uganda SCCA 1/1998.

It is also the position of the law that in the proof of cases, unless it is required by law, no particular form of evidence (documentary or oral) is required and no particular number of witnesses is required to prove a fact or evidence as per Section 58 Evidence Act and Section 33 Evidence Act. A fact under evidence Act means and includes: -

1. Anything, state of thing, or relation of thing capable of being perceived by senses as per Section 2 1(e) (i) Evidence Act.

On the duty of the first appellant court, the first appellate Court is mandated to subject the proceedings and Judgment of the lower Court to fresh scrutiny and if necessary make its own findings.See Bogere Charles vs Uganda, Criminal Appeal No. 10 of 1996, where Supreme Court held that:-

“The appellant is entitled to have the first appellate Court's own consideration and views of the evidence as a whole and its own decision thereon. The first appellate Court has a duty to rehear the case and reconsider the materials before the trial Judge. Thereafter, the first appellate Court must make its own conclusion, but bearing in mind the fact that it did not see the witnesses. If the question turns on demeanor and manner of witnesses, the first appellate Court must be guided by the trial Judge's impression.”

It was submitted by learned counsel for the Appellant that as a first Appellate court to scrutinize all the evidence as a whole in order to cure a wrong decision of the trial court.

I agree with the above and emphasize that this being the first appellant court, it is duty bound to evaluate evidence and arrive on its own conclusion, bearing in mind that it did not have benefit of the observing the demeanor of the witnesses. The duty of the first appellate court is to re-evaluate, assess and scrutinize the evidence on the record. This duty was well stated in Selle vs. Associated Motor Boat Co. [1968] E.A 123 and followed in Sanyu Lwanga Musoke vs. Galiwango, S.C Civ. Appeal No.48 of 1995; Banco Arabe Espanol vs. Bank of Uganda S.C.C. Appeal No.8 of 1998.

A failure to re-evaluate the evidence of the lower court record is an error in law. The appellate court has a duty to re-evaluate the evidence as a whole and subject to a fresh scrutiny and reach its own conclusion. See Muwonge Peter vs Musonge Moses Musa CACA 77; Charles Bitwire vs Uganda SCCA 23/95; Kifamunte Henry vs Uganda SCCA No. 10/1997.

It is also trite law that the appellate court can only interfere and alter the findings of the trial court in instances where misdirection to law or fact or an error by the lower court goes to the root of the matter and occasioned a miscarriage of justice. See Kifamunte Henry vs Uganda SCCA No. 10/1997.

Having satisfied myself and taken due recognition of the Law and rules of evidence applicable to a first appellate court, I will now turn to the substantive matters as raised in the Memorandum of Appeal and proceed to re-evaluate the evidence on record.

RESOLUTION OF THE APPEAL

In resolving the grounds in this Appeal, I have carefully examined the typed and certified record of proceedings and Judgment of the lower court as availed to me and taken into account the submissions of learned counsel for the Appellant.

Ground 1: That the Learned Trial Magistrate erred in Law and Fact when he found that the Respondent/Defendant was not liable in negligence hence arriving at wrong decision.

It was submitted by learned counsel for the Appellant that Negligence was correctly defined and cited by the Trial Magistrate at Page 3 of the Judgment Citing Justice Ssekana Musa in the case of Kakooza Sharif vs. Bamwe Transporters Ltd vs. John Mugisha Civil Suit No. 519 of 2020 where Negligence was defined to mean “an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would not do. It is a conduct, not state of mind-conduct which involves unreasonably great risk of causing damages". (See also Blyth vs. Birmingham Water Works (1856)11 Ex 78).

They argued that it is clear from the evidence on record that the motor vehicle Reg. No UAD 346F belonged to the Defendant [refer to Exhibit PE5] the abstract of accident and search report that was marked as P.I.D.2 at time when an accident occurred on 20/1/2018 and the 2^nd Plaintiff/Appellant was injured. The causes of accident were clearly contended by witnesses that it was as result of Defendant's negligence and reckless driving and this was confirmed in the police sketch plan taken from the scene of accident and vehicle inspection report marked as PE 5.

That it is clear from Page 4 of the Judgment that the Plaintiff averred that the Defendant is liable since the vehicle Reg. No. UAD 346F that caused the accident was found to be registered in her names. (See URA search report and abstract of accident at pages 52 and 47 of record of Appeal respectively). That the Defendant attempts to deny the ownership at Paragraph 5 (a & b) of her Written Statement of Defence (see Page 72 of record of appeal), but did not produce any evidence in that regard or attach any proof of sale agreement to her defence.

Further, that when invited to file Witness Statements and prove among others that she sold off the said vehicle evidence for a period of three years she did not do the same and more so she attempted to enter into a consent settlement where it was proposed as settlement arising out of the accident. That it is clear and unchallenged from the Court record that it was the Motor vehicle belonging to the Defendant that caused the accident and injured the 2^nd Appellant /Plaintiff and knocked the 1^st Appellant's motor vehicle causing damage to almost being written off.

They submitted that it was therefore wrong for the Trial Magistrate to find that the Defendant/Respondent was not liable when there was no contrary evidence since as owner of the motor vehicle owed a duty to other users of the road; and since the occupants of the motor vehicle Reg. NO. UAD 346F ran away as per Police evidence, the presumption is that the registered owner is the one who was driving the same vehicle unless proved contrary. They prayed that this Honourable Court finds in favour of the Appellants on this ground.

GROUND 2: The Learned Trial Magistrate erred in law and fact by holding that the ownership and the registration of motor vehicle No. UAD 346F in the names of the Defendant/ Respondent does not create legal duty hence causing miscarriage of justice.

It was submitted by learned counsel for the Appellant that it is clear from the record on court that the motor vehicle that caused the accident was owned by the Defendant/Respondent as per URA Search Report and this was never challenged by the Defendant at the hearing of the case or contrary evidence filed at pleadings level.

That without evidence to the contrary there is presumption that the Respondent herself was driving the motor vehicle. Evidence through the abstract of the accident which had particulars of 3^rd party insurance proves that the insurance had been renewed in the names of the Respondent/Defendant and this shows generally that the car owner should be held liable for damages.

That according Section 100 and 101 of Evidence Act Cap 6, the duty that the Respondent/Defendant was no longer the owner or was not the Driver was on her and she did not discharge the same. That Section 30 of Road and Safety Act, 1998 (as amended) provides that:-

“Presumption of owner of vehicle

The person whose name a motor vehicle, trailer or engineering plant not subject to a hiring agreement, or hire purchase agreement of a finance lease agreement is registered shall, unless the contrary is provided presumed to be the owner of the motor vehicle ,trailer or engineering plant".

That it clear that the motor vehicle Reg. No. UAD 346F belonged to the Defendant and therefore the lawful owner of the same and contended that the Trial Magistrate was wrong on reaching a conclusion that there was no legal relationship between the Defendant and the Motor vehicle Reg. No UAD 346F when actually it was registered in her names and nothing was adduced to prove otherwise other than the mere denials in the Defendant's Written Statement of Defence.

They contended that it was therefore erroneous for learned Trial Magistrate to reach a conclusion that there existed no legal duty between defendant and Motor vehicle Reg. No UAD 346F and that the Defendant was liable for an accident when actually it was Defendant's motor vehicle registered in her full and real names that caused the caused and injured the 2^nd Plaintiff and damaged the 1^st plaintiff's vehicle.

They invited this Honourable Court to overturn the wrong decision of the Trial Court and find in favour of the Appellants on this ground.

GROUND 3: That the Learned Trial Magistrate erred in law and fact by holding that the Respondent was not liable in vicarious liability for whoever was driving motor vehicle No. UAD 346F, hence a miscarriage of justice.

Learned Counsel for the Appellant relied on the Black’s Law Dictionary, 9^th Edition at page 998, which defines ‘Vicarious Liability’ as “the liability that a supervisory party, such as an employee, based on the relationship between the two parties”.

They submitted that as correctly put out by the trial Magistrate at page 4 of the Judgment, Vicarious Liability was defined by Batema N.D.A, J in the case Okupa vs. Attorney General & 13 Ors. Misc.No.14 of 2005 [2018] UGHCCD 10, to mean "a legal doctrine where a person, himself blameless, is held liable for another person's. Court further went on to state that "the rule is often justified by reference to the latin maxim "quit facit per alium facit per se" meaning that he who acts through another acts himself".

They therefore submitted that for a party to be vicariously liable for the acts of another, there should exist a relationship between the party and the person who did the negligent act. It was pleaded that on or about 20/1/2018 around 12:50hrs at Buwanga along Jinja High Way in Mayuge District, the 20 Plaintiff who was traveling in Toyota Lexus UAN 515G Black in colour belonging to the 1^st Plaintiff and being driven Plaintiff was knocked by the Defendant's motor vehicle No.UAD 346F, Toyota Corona which was solely arising out of the manner of driving of the motor vehicle of the Defendant.

That the Defendant's motor vehicle was driven recklessly and negligently by the Defendant and or her agents from lganga route towards Jinja route as Defendant's motor vehicle was driven at a high speed to support this, PW5 submitted the Police Form 37( Police Accident Report ) admitted by the trial Court as Exhibit PE5.

They relied on the case of Paulo Kato vs. Uganda Transport Corporation (1975) HCB which found that;-

"A driver of a motor vehicle is under a duty to take reasonable care for the safety of other traffic on the road to avoid collision. This duty involves taking all measures to avoid a collision. Once a possibility of a danger emerging is reasonably apparent, and no precautions are taken by that Driver, then the driver is negligent notwithstanding that the other driver or road user is breach of some traffic regulations or even negligent."

Further, that in the case of Baali Jackson vs. Mansons (U) Ltd. Civil Suit 37 of 2012, Lady Justice Eva.K.Luswata held that;

"It is evident therefore that where an accident occurs, it is incumbent upon the defendant to show either there was a probable cause on his part or that the accident was due to circumstances beyond his control. This is because, the law imposes a duty on a person who drives a vehicle on road to use reasonable cares to avoid colliding with other road users".

They argued that it was evident that the Defendant's motor vehicle was at the material time being driven recklessly and high speed when it collided with the Plaintiff's car. This clearly shows that the Defendant and or driver of the Defendant's motor vehicle which was on the road did not use reasonable care to avoid colliding with other road user like the plaintiffs.

That the fact that an accident an accident happened and the plaintiff suffered injuries is evidence Ipso facto that the Driver of Motor vehicle Reg. No. 364F at that material time breached the duty. The Defendant and or driver of the defendant was negligent for driving at an excessive speed in the circumstances.

That according to the evidence there was no intervening factor, the only evidences of such other intervening factors is that of driving of the vehicle at excessive speed and of failure to have a proper and reasonable look out on the road for other road users and vehicles. This was no doubt negligence on the part of the Defendant and or Defendant's driver for which the Defendant is personally or vicariously liable.

Further, that it was Appellants’ evidence is that the Respondent is liable, but in any case, if she had let the motor vehicle into hands of third party like her driver, family member among others then she is vicariously liable. All this was evidence on Court record which the Trial Magistrate never scrutinized hence arriving at wrong conclusion that occasioned miscarriage of justice.

They therefore submitted that the Trail Magistrate reached a wrong decision on the above when he ruled that the Defendant/Respondent was not personally and or vicariously liable; and prayed that court finds in favour of the Appellants on this ground.

GROUND 4: The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record as a whole and thereby arriving at a wrong conclusion that the Respondent was not liable for the accident caused by the Motor vehicle UAD 346F?

Learned counsel for the Appellant noted that from the record as typed by the Trial Magistrate, some pieces of evidence are not reflected for example, the Consent between the parties that was entered on 17/12/2021. That the Appellants presented evidence, which indicates that the motor vehicle UAD 346 F, driven by either the Respondent or the Respondent's driver/known agent knocked the 1^st Appellant's motor vehicle occupied and driven by 2^nd Appellant; and as a result it was damaged beyond repair. That motor vehicle UAD 346 F belongs to the Respondent as per Search Report and Abstract of Accident Report by Police.

Further, that before the suit was instituted a notice of intention to sue was served onto Defendant and the same was ignored. Refer to P.EX.3]; and that while filing the Written Statement of Defence, only denials were filed without particulars of 3^rd party claims.

They therefore submitted that once evidence is properly evaluated, it's indicative that the motor vehicle UAD 346F was on the road, knocked the 1^st appellant's motor vehicle causing an accident resulting in the damage of the of the 1^st appellant and injuring the 2^nd Appellant. Therefore, there was negligence on the occupants of the motor vehicle as per Police Report, since they were driving at high speed, overtaking in a wrong lane without observing traffic rules and by act/conduct of the occupants of the motor vehicle No.UAD 346 F, running away and abandoning the motor vehicle is the conduct of guilty or wrongful doer.

That the presumption is that the owner of the car was the driver since the occupants ran away and the registered owner did not provide contrary evidence to court. The allegations of the Defendant on possession and ownership by sale was not proved to court and not properly brought to attention of appellants. That if the respondent was truthful partly at the time of issuance of demand notice/intention to sue, the respondent would have responded with details of alleged sale and even at the filing of Written Statement of the Defence.

That basing on the above evidence and reasoning, the proper party to the suit is the Defendant /respondent and wrong doer and liable in evidence as registered owner of the motor vehicle.

That the Appellants adduced evidence that it is more likely and there is prima facie connection by ownership of the motor vehicle. That the Respondent is the owner and driver of the Motor Vehicle No. UAD 346F that knocked Motor Vehicle Reg.No UAN 515G. The owner of the vehicle is responsible for its operation and being driven.

That the Trial Court wrongly evaluated the evidence of ownership, the facts that there is no alternative party apart from the registered owner to be sued that insurance policy /cover had just been renewed by registered owner [refer to Abstract Accident Report].

That the failure of the Respondent to provide court and Appellants with the alleged purchaser of the motor vehicle; and the act of entering Consent that was recorded and on court record left the Respondent as the sole owner of the motor vehicle hence liable. They prayed that this ground be resolved in favour of the Appellants.

That from the foregoing and their entire submissions backing the grounds of Appeal raised; they prayed that:-

This court allows the Appeal, overturns the decision of the trial Magistrate Grade One at Jinja, enter Judgment in favour of the Appellants and award the Appellants Damages as prayed and proved in the lower court. And costs of this Appeal and in the lower court at court

In resolving the grounds in this appeal, I will first summarize the evidence that was presented before the Trial Court.

The following are the issues that were agreed upon to be resolved in this matter before the lower court:-

1. Whether the Defendant is liable for the accident caused by motor vehicle No. UAD 364F?

2. Whether the Plaintiff suffered damage as result of the accident?

3. Whether the parties are entitled to the remedies sought?

The Plaintiff’s 1^st witness was Nabirye Damalie female aged 37 years resident of Kiwatule, Nakawa Division, Kampala District (herein after referred to as PW1). In her evidence in Chief, she testified that she is the owner of motor vehicle No. UAN 515G Lexus, Black in colour. That she used to share her motor vehicle with her father the 2^nd Defendant, whereby her father would drive the same on some days. That the entire January of 2018, the 2^nd Defendant was driving the motor vehicle.

That on 20/1/2018, she got a call from her cousin brother Asirike Arthur and her sister Linda Nalubega and informed her about the accident involving her car, whereby her father travelling in was knocked by UAD 346F, Toyota Corona and the car has been extensively damaged and that her father had sustained injuries.

That when she inquired further, he informed her that Police Officers had already rushed to the Police at (he scene and that they were about to head to the Police Station. That at that time, she was at Wanyange at her parent's house, so she and her sister Linda rushed to the Police Station since they were already at Police Station.

That she found the 2^nd Plaintiff at Police giving the testimony, then the Police called the carrier to take the vehicle home. She paid Ug. Shs. 500,000/= (Five hundred thousand shillings only) as part of the Costs on the Ug. Shs. 800,000/= (Eight hundred thousand shillings only) that was charged and her father made a top up.

In addition, that she found when the motor vehicle was extensively damaged and the owner of the other motor vehicle Reg. No. UAD 346Q Toyota Corona, belonging to Mary Mukasa was nowhere to be seen, and Police informed them that they will try to make arrest. That we attempted to look for the owner of the Corona Motor vehicle and they were informed of the Defendant by the Police as they had verified the insurance cover; and they also made a search with Uganda Revenue Authority that confined the 2^nd Defendant as the owner of the Motor Vehicle UAD 346Q, Toyota Corona.

That it was then that 1^st and the 2^nd Plaintiff, met with the Defendant several times to solve the issues, but it was fruitless; and thereafter her father and she agreed to carryout repairs of the motor vehicle. That they received quotation from the mechanic, after having ascertained the damages of the vehicle which was repaired and now is moving.

The Plaintiff’s 2^nd witness was Asirike Nelson adult 62 years resident of Wanyange Village, Mafubira Sub-County, Jinja District (hereinafter referred to as PW2). In his evidence in Chief captured in his Witness Statement, the following were admitted as exhibits; the PF3 admitted and exhibited and marked PE6; Receipt dated 20/1/2021 SN92 marked PE2; Demand Letter marked PE3.

He testified that he and the 1^st Plaintiff who is his daughter, normally share the use of motor vehicle No. UAN 515G whereby sometimes he drives himself to carry out personal errands. That on 20/1/2018 at around or about 12:50 hours, he was driving towards Bulanga, Mayuge District, Jinja High way, for introduction and he got involved in the car accident at a place called Buwanga along Jinja - Iganga High way in Mayuge District.

That while driving in his lane, car Registration No. UAD 346F coming from the opposite Side, that is towards Jinja, in an attempt to bypass/overtake a huge trailer at a high speed collided with mine, knocked it; causing the car to sustain extensive damages and he also sustained injuries in form of cuts on his arm. That after the impact, the two vehicles swerved off from the road and due to impact, there was a loud bang and the tyres on drivers side both burst. That after having knocked him, the occupants of Motor Vehicle No. UAD 346F moved out and ran away.

That due to the impact, he lost conscious for some time, people came and removed him from the car, when he was bleeding and he was advised to go to the hospital. That shortly after the accident, Police Officers arrived and they asked him where his car was. By this time he had gained consciousness, he showed the keys to policemen. That at that time his son was arriving and he contacted other relatives, including the 1^st Plaintiff. That Police measured and thereafter got him a carrier to take the motor vehicles (both) to the Police Station, whereby he paid Ug. Shs. 300,000/= (Three hundred thousand shillings only) for the carrier services.

Further, that PW2 and his son went to Police, met OC who contacted Inspector of Police at lganga who inspected the vehicle and his motor vehicle was released and he hired a carrier again to transport the vehicle to his residence. That he also was admitted at hospital, examined and got treatment for the injuries sustained and was discharged. (Admission Report is hereto attached and marked as exhibit P.4).

That after sometime, he went to Police to find out the progress of the case and the owner to which we later established through searches and Police the owner of the motor vehicle that had knocked him as the defendant and insurance cover. (Copy of the Search Report is hereto attached and marked exhibit P. 5).

That after having established ownership of the motor vehicle, through URA for the contacts and email, they attempted to talk to the Defendant to at least make repairs of their motor vehicle she promised to so, but later she started dodging us which prompted him to initiate the process of repairing our vehicle since it was burden sum to hiring another one for transportation. That the mechanics for repair came, inspected the motor vehicle, assessed the same and he was issued with an invoice. That upon clearing the invoice, the motor vehicle was repaired and it’s now in use and back on the road.

PW2 added that on the date of the accident, he was admitted in hospital, subjected to examination and later treatment after having been discharges was advised to do bed rest as to heal from trauma of accident. After sometime, he was informed by Police the reports are ready and that he picked the same. That through their lawyers M/S. Pearl Advocates & Solicitors, they wrote a demand note informing the Defendant officially to compensate them, a letter she ignored deliberately and referred us to go to court.

The Plaintiff’s 3^rd witness was PC Nankwanga Rachael adult 31 years attached to Magamaga Police Station (hereinafter referred to as PW3). In his evidence in Chief captured in his Witness Statement, the following were admitted as exhibits; Receipts dated 21/1/2018-SN/98 and invoice dated 20/1/2018 SN/94 marked as PEII respectively; Receipt dated 20/1/2021 SN92 marked as PE2; Demand Letter marked as PE3

PW3 testified that she is a Police officer and has been in Police Force for 5(five) years now. That while on duty on 20/1/2018, she witnessed an accident that involved motor vehicle No. UAD 364F and UAN 515G. That motor vehicle No. UAD 364F was driving towards Jinja from Mayuge and Motor vehicle No UAN515G was driving towards Mayuge from Jinja.

Motor vehicle No. UAD 364F in an attempt to overtake a lorry which was big in size, rammed into UAN 515G causing it extensive damage and injuring the occupant. The occupants of motor vehicle No. UAD 364F, immediately after the accident, took off and they were nowhere to be seen.

The bystanders and PW3, removed the plaintiff from the motor vehicle and he was inquiring at what has happened, she looked uneasy and had sustained some injuries and she immediately ordered for the carrier that took the motor vehicles to the Police and with the 2^nd Plaintiff for statement recording.

Thereafter inspection of vehicles was done and the motor vehicle UAN 515G was released; and she also carried out and drew a sketch report of the accident detailing how the accident took place and also abstract particulars of accident.

The Plaintiffs closed their case.

I will resolve grounds 1, 2 and 4 concurrently. I have critically analyzed the circumstances under which the Appellant sustained injuries and damages to his vehicle in the accident. It can be discerned from the Judgment of the trial Magistrate that the Respondent was not found personally liable because according to the reasoning of the Trial Magistrate, the Appellant failed to prove that that the Respondent was driving the vehicle.

I have re-evaluated the evidence led during the hearing and found that the evidence of PW3, a Police Officer who witnessed the accident and appeared as an eye witness identified the vehicle of the Respondent as the one that knocked down the Appellant and caused him the injuries he sustained. PW3 further in Exhibit PE5 the abstract of the particulars of the accident, stated that “I identified that the owner of Motor Vehicle No. UAD 364 F was trying to overtake a truck and therefore was driving recklessly”.

In paragraph 4 of her Witness Statement, she testified that “motor vehicle No. UAD 364F in an attempt to overtake a lorry which was big in size, rammed into UAN 515G causing it extensive damage and injury to the occupant.”

I have also examined the sketch plan drawn by PW3 at the scene of crime and find that it corroborated her PE5 and her evidence generally. Her findings also confirm what was stated by PW2 who was the victim of this accident.

In the absence of any evidence to the contrary, it is my finding that whoever was driving the vehicle failed to use due diligence and was therefore negligent.

Secondly, I have also noted that, the Respondent in her Written Statement of Defence denied being the owner of the vehicle at the time of the accident, but she failed and or refused to divulge the name of the person whom she had allegedly sold it to have been driving the car at the material time.

The position of the law as cited above on burden of proof is clear and it states that he who asserts must prove. In this case, the Defendant/Respondent only made assertions but failed to lead any convincing evidence to prove that at the material time and place, she was not the actual owner of Motor Vehicle No. UAD 364 F. The record also shows that she was very un-cooperative throughout the trial in the lower court as she failed to enter appearance at all material times when the matter came up for hearing and failed to disclose to whom she sold the motor vehicle in question if at all.

The above inclines me to find that the Appellants’ evidence was not watered down or rebutted by any evidence to the contrary. All the circumstances placed responsibility on the Respondent for the negligence at the material time when the accident took place. I therefore agree with the submissions of learned counsel for the Appellants and also find that there negligence on the part of the Respondent who was the owner of motor vehicle No. UAD 364F at that material time.

It is therefore my decision that the learned trial Magistrate erred in law and fact for failure to hold that the Respondent was personally negligent. Therefore Grounds 1, 2 & 4 Succeed.

Ground 3: By holding that the Respondent was not liable in vicarious liability for whoever was driving motor vehicle No. UAD 364F, hence cause miscarriage of justice.

In resolving this ground, I have critically analyzed all the evidence led before the Trial Court. Learned counsel for the Appellant seems to raise the principle of vicarious liability was only raised by counsel for the Appellant on an assumption that the Respondent put the vehicle into the hands of a third party like her driver, family member among others then it makes her vicariously liable which assumption has legal basis to hold that the Respondent was vicariously negligent or liable.

It is clear that the learned trial Magistrate failed to take cognizance of the fact that the Respondent in her Written Statement of Defence was merely alluding to evasive denials as to ownership of the car at the material time the accident occurred, but failed to put up a credible defence to support her assertions. It is clear that while she totally denied liability, she failed to divulge information as to whom she has sold the motor vehicle, thereby failing in her duty to fulfil the requirement to divulge this information.

It therefore follows that the evidence from the Search Report admitted and marked Exhibit P. 5) was not rebutted by any other evidence. This is an official report that reveals her as the registered owner of motor vehicle No. UAD 364F at the time the accident was caused. It must also be emphasized that Section 31 of the Traffic and Road Safety Act Cap is clear that transfer of a motor vehicle must be completed within 03 months of sale. For avoidance of doubt, it reads that:-

“Notice of change of ownership

1. Within three months after the sale or other disposition of any kind of any registered motor vehicle, trailer or engineering plant, the person selling or otherwise disposing it shall notify the licensing officer, in the prescribed form accompanied by the prescribed fee, of the sale or disposition, the name and address of the new owner, the mileage recoded on the mileage recorder, if any, of the motor vehicle, trailer or engineering plant and other particulars as may be prescribed.

A more recent Finance Act, 2013 in Part III in Section 3 amendment section 31 of the Traffic and Road Safety Act, 1998 by substituting for subsection (1) the following;-

“(1) Within fourteen days after the sale or other disposition of any kind of any registered motor vehicle, trailer or engineering plant, the person selling or otherwise disposing of it shall notify the licensing officer in the prescribed fee, of the sale or disposition, the name and address of the new owner, the mileage recorded on the mileage recorder, if any, of the motor vehicle, trailer or engineering plant and other particulars as may be prescribed”.

Relating the above to this case, it is clear that the Respondent failed in her duty to give Court verifiable information about who, if at all she sold the said motor vehicle to. I therefore, find on the balance of probabilities that it is more probable than not that it was herself or her agents who was driving the said motor vehicle at the time of the accident; and I concur with the submissions of learned counsel for the Appellants.

My decision is that the Respondent who had also first entered into a Consent with the Appellants was responsible for the accident cause to the Appellant by motor vehicle No. UAD 364Fl; and I declare so.

It is also my finding that by holding that the Respondent was not liable in vicarious liability for whoever was driving motor vehicle No. UAD 364F, this was a misdirection of law and fact which led to a miscarriage of justice to the Appellants.

Having found as I have in this and the previous grounds, it is my decision that the Judgment and Orders of the learned Magistrate Grade One be and are hereby quashed and set aside. It is the decision of this Honourable Court that the Appellants have succeeded in their Appeal. They prayed for reliefs in the Plaint which are summarised in the facts (supra); and I see no justifiable reasons to deny them the prayers in their Plaint. They are therefore awarded all the reliefs in the Plaint.

Specifically in respect to Special damages in personal injury cases, these are items of pecuniary loss which can be quantified precisely like the cost of repairs, medical expenses, travelling expenses and loss of earnings from date of accident. They are incurred by the claimant between the date of the accident and the date of trial which can be specifically calculated. See The Uganda Civil Benchbook 1^st Edn., Januray 2016 at page 205.

The Appellants prayed for Special damages amounting to 12,000,000/= and presented proof of their respective claims. In the absence any evidence to the contrary I agree with their claims and award the same.

Turning to general damages, the settled position is that the award of general damages is in the discretion of court, and is always as the law will presume to be the natural and probable consequence of the defendant’s act or omission. See: James Fredrick Nsubuga v. Attorney General, H.C.C.S No. 13 of 1993; Erukan Kuwe v.Isaac Patrick Matovu & A’nor H.C.C.S. No. 177 of 2003 per Tuhaise J.

Also, in the assessment of the quantum of damages, courts are mainly guided by the value of the subject matter, the economic inconvenience that a party may have been put through and the nature and extent of the breach or injury suffered. See: Uganda Commercial Bank v. Kigozi [2002] 1 EA. 305. A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been if she or he had not suffered the wrong. See: Charles Acire v. Myaana Engola, H.C.C.S No. 143 of 1993; Kibimba Rice Ltd. v. Umar Salim, S.C.C.A. No.17 of 1992.

The party claiming general damages is expected to lead evidence to give an indication of what damages should be awarded on inquiry as the quantum. See: Robert Cuossens v. Attorney General, S.C.C.A No. 8 of 1999; Ongom v. Attorney General, [1979] HCB 267.

In the instant case, the plaintiffs have satisfactorily demonstrated that they suffered great inconvenience at the instance of the defendant. I therefore agree with learned counsel for the Appellants; and find that they are entitled to general damages. An amount of Shs. UGX 20,000,000/= (Twenty Million only) has been found sufficient in this case.

Section 27 (2) of the CPA makes provision for interest on claims for monetary payment. A just and reasonable interest rate, in my view, is one that would keep the awarded amount cushioned against the ever rising inflation and drastic depreciation of the currency. In that regard I would consider interest at court rate to be just and fair. It shall be applicable to both the Special and general damages from the time of reading this Judgement until payment in full.

Finally, it is now well established law that costs generally follow the event See Francis Butagira vs. Deborah Mukasa Civil Appeal No. 6 of 1989 (SC) and Uganda Development Bank vs. Muganga Construction Company (1981) HCB 35.

Indeed, in the case of Sutherland vs. Canada (Attorney General) 2008 BCCA 27 it was held that courts should not depart from this rule except in special circumstances, as a successful litigant has a ‘reasonable expectation’ of obtaining an order for costs.

In the instant case, the Appellants have succeeded in their Appeal against the Respondent; and I see no justifiable reasons to deny them costs in this Court and the Court below; they are therefore awarded full costs in this Honourable Court and in the lower Court.

In the final analysis, it is my decision that:-

1. This Appeal is ALLOWED.

2. It is declared that the Respondent was the owner of motor vehicle registration No. No. UAD 364F at that material time that it caused the accident to the Appellants.

3. It is also declared that the Respondent, is vicariously liable for the actions of her driver, agent or any person she left in charge of motor vehicle registration No. UAD 364F and she was negligence and/or vicariously liable for the accident.

4. The Appellants are awarded all the reliefs sought in the lower court.

5. They are awarded Special damages UGX 12,000,000 in total.

6. General damages of UGX 20,000,000/=

7. Interest on both special and general damages at Court rate from the time of this Judgement until payment in full.

8. Full costs of the suit both in this Honourable Court and the Court below.

I SO ORDER

__________________________________________

JUSTICE DR. WINIFRED N NABISINDE

JUDGE

09/05/2024

This Judgment shall be delivered by the Magistrate Grade 1 attached to the chambers of the Resident Judge of the High Court Jinja who shall also explain the right of appeal against this Judgment to the Court of Appeal of Uganda.

___________________

JUSTICE DR. WINIFRED N NABISINDE

JUDGE

09/05/2024