Court name
HC: Civil Division (Uganda)
Judgment date
14 October 2016

Ocan v Nsubuga (Civil Appeal-2016/97) [2016] UGHCCD 57 (14 October 2016);

Cite this case
[2016] UGHCCD 57
Coram
Wolayo, J

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL APPEAL NO. 97  OF 2016 (FORMERLY NAKAWA HCCA 10 OF 2015)

(ARISING FROM ENTEBBE CIVIL SUIT NO. 170 OF 2015)

JOEL OCAN LAKUMA……………….APPELLANT

V

DEZIDERIO NSUBUGA……………RESPONDENT

BEFORE HON. LADY JUSTICE H. WOLAYO

JUDGMENT

Through his advocates  Arinaitwe Law Advocates, the appellant appealed the judgment of HW Joyce Kavuma Chief magistrate  dated 8th January 2015  on three grounds of appeal that I will revert to later in the judgment.

The respondent was represented by Muslim Centre for Justice and law.

Both counsel filed written submissions that I have carefully considered.

It is now settled law that the duty of the first appellate court is to re-evaluate the evidence adduced in the lower court and arrive at its own conclusions on issues of fact and law.

The respondent sued the appellant  in tort for negligent driving and causing damage to the respondent’s motor vehicle UAL 843 W along Entebbe road . The respondent prayed for special and  general  damages for the damage and loss occasioned.

The appellant admitted liability for the accident but that he had fully compensated the respondent which compensation was rejected.

In the trial court, it was not disputed that on 2.10.2010, the respondent’s vehicle No. UAL 843 W was involved in an accident for which the appellant accepted liability . In an agreement dated 5.10.2010  Pexh. 1 , the appellant agreed to meet cost of repairs certified by the Police Inspector of Vehicles .

The respondent took the car to the garage of the appellant’s choice located at Makerere for the repairs where he was told the vehicle needed an overhaul .

The respondent admitted he never collected the repaired car from Entebbe police station because the repairs did not meet the required standard.

His witness PW2Paul  Eng.  Odongo, an automotive and power engineer from Kyambogo  University inspected the repaired vehicle on 20.12.2010  and he determined  the vehicle  sustained ‘diamond ‘ damage  which  technically meant , such a vehicle cannot be legally on the road.

PW3 Okurut Joseph Inspector of Vehicles with Uganda Police  checked the vehicle after the accident and found that it was not in a dangerous mechanical condition although oil was leaking.

DW2  Eng.Luyima Peter for the appellant  confirmed he received a vehicle from the appellant for repairs at his garage . Luyima, an engineer, found no damage to the body of the vehicle and that diamond damage referred to by PW2 Odongo was to the chassis. He confirmed some repairs e.g. replacement of driver’s door, side lamp and complete body work.

Three issues were framed for determination by the trial magistrate.

  1. Whether the plaintiff’s car was repaired to the recommended road worthy condition
  2. Whether the car was delivered or handed to the plaintiff as agreed
  3. Remedies.

 

On the basis of the MOU dated 5.10.2010, the trial magistrate was justified to frame the issue as she did.

In the course of the trial, it was conceded by both parties that the two entered a memorandum of understanding dated 5th October 2010 and marked Pexh. 1 in which the appellant admitted liability for the accident and undertook to pay the cost of repair of motor vehicle UAL 843 W and to compensate the respondent 50,000/ per day for the period the car will be at the police custody and garage.

The appellant did not cost the repairs he did on the vehicle .  His expert witness who carried out the repairs  DW 2  Eng. Luyima was non-committal on the actual cost of repairs and testified that he was to replace driver’s door, door glasses, side lamp, and do complete body work and fence . It was Eng. Luyima’s testimony that he did his part and received no complaint.

It was not disputed that the appellant delivered a repaired car to Entebbe police station after the repairs which the respondent never collected.

The respondent rejected the repaired car and called PW2 Eng. Odongo who carried out a post repair examination of the vehicle and captured his findings in Pexh.3 , a report dated 20.12.2010. In this report, Eng. Odongo found that the car had not been repaired to meet road worthiness and that it had not been brought back to the pre-collision value.  He therefore recommended the appellant pays the respondent its pre-collision  value that he placed at 25,579,195/ while the appellant retains the repaired vehicle with a value of 3,000,000/. In other words, Eng. Odongo recommended a sum of  22,579,195/ be paid to the appellant as pre- collision value.

Counsel for the appellant cross examined Odongo on his qualifications as an expert in automotives and Eng. Odongo stood the test because he proved that he holds a Bachelor of Engineering Automotive and power engineering from  Kyambogo University among other qualifications.

In his submissions, I note that  counsel for the appellant attacked the competencies of PW2 but I find these attacks are not supported by evidence. The cross examination showed the engineer had the competencies and  authority to assess condition  of motor vehicles as well as their value.

In the absence of credible contrary evidence, the trial magistrate was justified when she found  that the appellant did not meet his part of the MOU when the vehicle was not repaired to the level of road worthiness. The appellant was estopped from denying the agreement to repair the vehicle  to a road worthy state and the trial magistrate was justified in finding for the respondent.   Cross and Tapper on Evidence 8th edition, Butterworths publishers(1995)  : page 102  states that two people may agree that a certain state of affairs exist and when this is done, they are estopped from denying the existence of those facts. 

I now turn to the grounds of appeal.

Ground one

The learned trial magistrate erred in law and in fact by not evaluating the evidence and thereby occasioned a miscarriage of justice.

I have re-evaluated the evidence adduced in the lower court and found that the trial magistrate properly evaluated the evidence and arrived at a correct conclusion.

Ground two

The learned trial magistrate erred in fact and in law by awarding damages of 25m as replacement value whereas the motor vehicle was lost at the hands and negligence of the respondent.

The appellant had a duty to repair the vehicle to a roadworthy condition while  respondent was entitled to reject a vehicle that was not road worthy.  The respondent exercised his right to reject the vehicle that was  not road worthy and thereby suffered  a loss. 

It is  settled principle of law that special damages must be specifically pleaded and proved.

The respondent claimed among other heads of special damages, a sum of 25,329,000/ as  cost for recovery  of  the damaged  motor vehicle which the trial court awarded.

Counsel for the appellant argued that the respondent ought to have collected the vehicle after repairs  . Counsel was raising the principle of mitigation that  the respondent had a duty to mitigate his loss. I find that mitigation of the loss suffered by the respondent in terms of a damaged vehicle was not possible if the vehicle was not road worthy after repairs.

From my re-evaluation of the evidence, I found that the pre-collision value of the vehicle was 25,579,195/  and the value of the repaired vehicle was 3,000,000/ .

This means the special damages the appellant was entitled to was 22,579,195/ .

Although the respondent pleaded 25,329,000/,  and the proved value of the pre-collision value of the car was 25,579,195/ ,  the negligible difference of 250,195/  between the pleading the actual value cannot be a basis for denying the respondent an award of special damages. I therefore substitute 25,329,000/ with an award of 22,579,195/  after deducting the value of the repaired vehicle.

With respect to general damages , the respondent was offered a bank draft worth  1,250,000/ for the days the vehicle  was in the garage . He rejected this sum. Under the common law duty to  mitigate loss, the respondent  ought to have accepted this money and then claimed for more if he was dissatisfied.

In African Highland Produce Ltd v Kisorio [2001] 1 EA 1, the plaintiff  hired a land cruiser after his car was damaged in an accident in which the defendant  was liable . The plaintiff   claimed special damages for hiring a vehicle for 21 days. The Court of Appeal  of Kenya held that  the plaintiff had a duty to take all reasonable steps to mitigate the loss he sustained   including retrieving the car from the garage within  21 days which he did not.

 The trial magistrate therefore erred in not taking into consideration the  1,250,000/ rejected  by the respondent when awarding general damages.

I will therefore exercise my discretion and deduct 1,250,000/ from 2,000,000/ awarded. The result is an award of 750,000/ general damages.

Ground three

The learned trial magistrate erred in ignoring the appellant’s defence and relied on extraneous matters.

There is no merit in this ground because the trial magistrate relied on oral testimonies of witnesses and documentary evidence to arrive at a decision.

In the result, the appeal is dismissed .

The judgment of the lower court is varied as follows:

  1. The respondent is awarded special   damages of 22, 579,195/ and   750,000/ general damages.
  2. Costs of the appeal and the lower court to the respondent.

 

DATED AT KAMPALA THIS 14TH DAY OF OCTOBER 2016.

HON. LADY JUSTICE H. WOLAYO

 

 

 

 

 

14.10. 2016

Tonny Arinaitwe for the appellant

Appellant absent. Reported sick

Respondent present

Court clerk. Margret

Judgment read out .

H. Wolayo J