THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL APPEAL NO. 40 OF 2002
BEYENDEZA MARK ::::::::::::::::::::::::::::::::::::: PLAINTIFF
RUBARAMIRA KENETH ::::::::::::::::::::::::::::::::::::: DEFENDANT
(Appeal from a decree of the Chief Magistrate Court Mengo before Grade I Magistrate Baine Omugisha Catherine)
BEFORE: THE HON. MR. JUSTICE R.O. OKUMU WENGI
(b) Failure to allow an eye witness to testify for the Plaintiff and instead blame the plaintiff for not calling the witness.
(c) Failure to not admission by the defendant that the plaintiff was his employ.
From the record the Plaintiff averred in his plaint (at paragraph 4 & 6) that he was an employee of the defendant as a turnboy and that he was acting in the course of his duties as such when he was injured. For the defendant the WSD denied this employment in general terms.
The evidence on the issue is to be found in the Plaintiffs own testimony:
The defendant testified as DW1. He told the trail Magistrate that he knew the plaintiff as a casual labourer at the William Street. He denied that he employed plaintiff. He only conceded that he owned the lorry named by the plaintiff and that he had a turnboy called George. He suggested that plaintiff was only blackmailing him as he issued employees appointment letters and identify cards. He then stated:-
Considering the circumstances of this case I am not in agreement with the trial court that the plaintiff failed to call evidence on the issue of the circumstances of how he came to be injured. The rule in order 6 rule 1 notwithstanding the trial court should have allowed the plaintiff to call the driver of the trailer who witnessed the ghastly accident. When the case went for hearing on 26/10/2000 the Plaintiff called a witness as his first witness. This is the very eye witness whose testimony was excluded by court on the ground that his name had not been listed as a plaintiffs witness. The witness was even listed as a second witness for the defendant though when it came to the defendants turn he was not called. The effect was to block his testimony altogether from the court. This is a case where it was possible to discern that the witness, a key witness for the plaintiff was being suppressed and yet his testimony was vital for a just decision of the matter. On 27/02/2002 the Plaintiff again sought permission to call the driver of the trailer. He was again not permitted to do so. Indeed in re-examination the defendant stated to court that his driver at the material time was one Lugoobi who no longer worked for him. He did not call him though such driver was his testimony had been locked out on account of this factor. It is anybody’s guess how he lost his job in the meantime.
The principle behind the rules is that as much as possible the list of witnesses should be provided. In this case the defence had offered to call the driver. It was not a fault if the plaintiff in so far he was not fuilty of laches in hesitating to call the defendants driver. It was sufficient for him to produce the key witness and apply for him to testify. His right to produce the witness cannot be taken away simply because he omitted to include his name in his list but was able to produce the witness whom the defendant had himself listed. It was for the courts decision only bearing in mind the need to restrict the number of witnesses to an extent which should cater to the requirement of the case: See Yashpal Sawhney vs Gandotra Traders AIR 1995 32; Lalitha J. Rai vs Aithappa Rai 1995 SC 1766.
The idea is that evidence of a key witness should not be struck off unless the party calling an unlisted witness is guilty of negligence or lanches. The court would allow the witness to be examined and only give reasons for so allowing an unlisted witness to be examined. In the present case the plaintiff had indeed produced the witness and both parties would examine the witness to elicit the truth. With due respect therefore I would agree that the two trial Magistrates who successively rejected the witness being called by the plaintiff denied not only the plaintiff but the defendant a chance to call its witness. This is because by the time the defendant was due to call the witness he had ceased to be an employee of the defendant. In the result even the court was deprived of an opportunity to go into the details of the accident. The plaintiff was effectively disabled in same way from substantiating his case further. I would therefore agree with Mr Mutabingwa learned counsel for the plaintiff that striking out the evidence of his witness, a key witness for that matter, could not be said to have been done with judicial discretion in both instances. It would have been quite open to the second trial magistrate to call the witness which court can do so “at any stage” in the proceedings nd that doing so would not be prejudicial to the defendant. In the result I must allow this appeal on this ground. I would also allow it on the other ground that the plaintiff himself and the medical doctor who testified were able to sustain the plaintiffs case beyond a bare balance of probabilities. The excluded evidence would have sealed it to a higher degree. But in the circumstances of this case the review of the evidence justifies a conclusion that the plaintiff proved his case. He did so particularly to the extent that he sustained his assertion that he was injured in the course of his employment with the defendant and that the defendant must be liable, the exclusion of the drivers evidence notwithstanding. Having come to this conclusion I must also say that since costs follow the event the ground of appeal dealing with costs also succeeds. I therefore allow this appeal, set aside the decree of the trial court and allow costs for this appeal and in the trial court to the appellant herein.
On the evidence there is sufficient material for this court to quantify the damages. The plaintiff gave evidence that he earned shs. 50,000 per month. This is a reasonable claim. He states that he would also get 70,000 as allowances each time he traveled between Malaba and
Rwanda on defendant’s vehicle. This is consistent with the defendants own statement that he used to give his trailer team shs 300,000 for the trip. I would therefore enter Judgment against the defendant to pay the plaintiff:
(b) Shs 600,000 as general damages.
(c) Costs of the suit as stated earlier.
R.O. Okumu Wengi
Mutabingwa for Appellant
Dorothy Kihande for Respondent.
Sgd by: G. Namundi