THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO 197 OF 1990
AGNES MUKASA ::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF
AKAMBA (U) LIMITED:::::::::::::::::::::::::::::::::::::::::::::DEFENDANT
Before; The Honourable Justice Kireju
This action is brought by the plaintiff Agnes Mukasa against the defendant Akamba (U) Limited for general and special damages arising cut of the injuries she sustained in a motor accident which occurred on 10/10/1989 on Kampala/Masaka road. The plaint alleges that the accident was caused by the negligence of the defendant’s driver in the course of his employment. In its defence, the defendant admitted that it was the registered owner of motor vehicle UXS 106 but denied all claims by the plaintiff and also denied that the vehicle was driven or managed by its servant as alleged or
That the said driver was in course of the defendant’s employment. At the hearing, Mr. Mpungu of Mpungu and Company Advocates appeared for the plaintiff and Ms Irene Mulyagonja of Mulira & Co. Advocates appeared for the defendant company.
At the-hearing of the case following issues were famed:-
Whether there is any cause of action against the defendant.
(2) Whether the defendant was negligent.
(3) What damages is the plaintiff entitled to if any.
The plaintiff 42 years old teacher at Kako Senior Secondary testified that she was involved in an accident on 10/10/89 around 7p.m. On that day she had come to Kampala to buy books for the school with her husband one Francis Mukasa P.W4. In the evening they boarded a bus UXS 106 and she paid shs.800/= and left for Masaka at around 6.00 p.m. together with her husband. The driver of the bus was driving very fast and she became very worried and even feared to look out of the window. Her husband however, assured her that they would arrive safely. It became very dark before they reached mitala maria and the driver put on very dim lights, as he did not have proper lights. By the time they reached Lwera it was already dark but the driver continued to drive recklessly. When they were a mile from Lukaya in a swampy area, she saw a lorry parked on the left side of the road. The next thing she heard were people screaming. The bus had fallen on the left side of the road in a swamp. Her husband lifted her out of the bus as she could not stand because her left leg had been smashed and she was bleeding. He carried her to the side of the road where she managed to get a lorry which took her to Kitovu Missionary Hospital. She was hospitalized for two months. Her left leg was amputated. She is now using an artificial limb purchased from Mulago at Shs. 50,000. The limb has to be changed every year as it wears away. She has so far bought two limbs since the accident. She paid shs.150, 000/= for treatment but he did not have the hospital bill, she was only issued with a discharge form. She testified that the accident has affected her career and she fears she may be retrenched. She used to teach 24 lessons a week but she can now teach only 12. She cannot stand for a long time and she is no longer efficient as a teacher. She cannot do all her house work she has had to employ someone whom she pays Shs. 20,000/= per month, before the accident she was only paying Shs. 3000/= for domestic help. She used to grow food for her family but she cannot do that now. The accident has disfigured her as a woman and she is no longer confident as a woman. In cross examination, she said that she was not sure about the owner of the bus, but that she boarded at Gasso parking place. The receipt on which she paid the fare got, lost in the accident, the plaintiff also called Dr. Mary Lynch P.W.2 of Kitovu hospital, who testified that she treated the plaintiff who was brought to the hospital on 10/4/89 in a very shocked condition. She
had broken the left leg and she bad several cuts on her face and neck for about two months and paid about Shs. 200,000/=. PW2 estimated the plaintiff’s incapacity at 30%. She referred the plaintiff to Kampala to be fitted with an artificial leg. The next witness to testify for the plaintiff was P.W3 corporal Javuru No. 10919 who testified that on 10/10/89 at around 8.00 p.m. He learned of an accident on 38 Km. Masaka Kampala Road. It was Mr. Kamuyu, Managing Director Gasso Transport Services who reported the accident and provided them with transport to the scene. The witnesses proceeded to the scene of the accident with Sgt. Oria. The place is called Lwera and they arrived there around 9.OOp.m. They found the bus UXS 106 and a Bedford lorry UWU 171 in a swamp. Both vehicles were facing Masaka 11 bodies were removed from the bus and taken to Masaka mortuary. He returned to the scene and spent the night there, the following morning he drew a sketch plan which was exhibited as. P.2 From his investigation he found that the lorry had broken down and had been, parked facing Masaka. He also concluded from the skid marks that motor vehicle UXS 106 was over speeding. The abstract police report was also exhibited. In cross examination he further testified that he concluded that the bus belonged to Akamba (U) Ltd because that is the name which appeared in the log book. He said that Mr. Kamuru was concerned about the accident because most of the businessmen who died were from Masaka and were known to him. He said the driver of the Isuzu bus was not prosecuted because he had died in the accident. The last witness to be called in support of the plaintiff’s case was Dr. Francis Mukasa P.W.4 and husband to the plaintiff. He testified that on 10/10/89 he travelled in a bus from Kampala at around 6.OOp.m with his wife headed for Masaka. The driver of the bus was driving too fast between 60 and 70 miles per hour and the bus did not have proper lights he was using indicators. When they reached Lwera after a vehicle had passed them he had a bang, then he found himself in the muddy swamp water outside the bus. He then heard his wife calling, he went back into the bus found her there with her leg smashed, and he carried her out of the swamp to the road with help of another man. She was taken to Kitovu hospital where she had her leg amputated. She stayed in hospital for 2 months and he paid Shs. 200,000/= hospital bill. He further testified that because of the leg which was amputated she cannot do the things she used to do in the home and had to employ a helper whom he pays shs. 20,000/=. They have 7 children who need to be cared for, he said that they bought an artificial leg for her and paid shs. 50,000/=.
In cross-examination he further testified that he thought the bus belonged to Gasso because it was written on the bus but later he learned from Masaka Police Station that vehicle belonged to Akamba (U) Ltd. according to the log book.
The defendant called 3 witnesses, D.WI Tobi Kabasomba testified that he was a sales representative with Akamba, he had worked with the company for 8 years. He was responsible for looking for customers who were interested in buying vehicles. Akamba are agents of Mersey Ferguson tractors and vehicles. He testified that Joy Kusiima DW2 bought an Isuzu bus UXS io6 from the company. He exhibited an invoice Exh. D.1 where Joy Kusima was being asked to pay an outstanding balance on the bus, it was dated 29/10/87. Kusima later sold the bus to Gasso Transport Services as per her letter dated 27/11/87, exh.D.2. The bus was delivered to Kusima in 1987 but he did not remember the exact date. He said that the bus could not be transferred from Akamba to Kusima initially because she had not finished paying for it. He said that some documents were handed to Fred Kijambu of Gaso namely a receipt and licence certificate Exh. D.3. He said that be had never heard of Wilson Kamya.
DW.2 Joy Kusiima, testified that she bought a bus from Akamba (U) Ltd in March,1987, she paid shs. 22 M (cash) when the bus arrived she had to pay about extra she. 400,000/= (N.C.), this amount he paid in November 1987. She used the, bus for a few months and decided to sell it a receipt, on which she bought the operator’s license dated 9/6/87 was exhibited as Exh. D.4. She used the bus for a few months and decided to sell it to Gasso, she admitted writing Exh. D.2 where she requested Akamba to transfer, the bus to Gasso Transport Services. In cross-examination she said that she paid for the bus in 2 installments, the original shs. 22M and the extra shs. 400,000/=. She never asked for the bus to be transferred in her names because she never wanted to keep it but to sell it. She said that the vehicle was released to her after paying the second installment.
The last defence witness was Ali Asghar Khan DW.3 who testified that he was the General Manager of Akamba (U) Ltd. He started working with the company in 1984 as a sales Manager. He said that Isuzu bus UXS 106 was imported in 1987 for the order of Joy Kusima she was to pay she. 220m/= for the bus as per invoice issued to her on 19/3/87 Exh. D.5. He said that the bus was registered in the names of Akamba as an importer. in November, 1987 Joy Kusima paid the balance exh,D.1 and the transaction was completed. He further testified that Kusiima took the bus in June 1987 before paying the balance in November, 1987. He said that the terms were cash sale and they can give credit sale but they do not deal in hire purchase. He said that he was aware of Exh.D.2 but Gasso never approached them for transfer. He said that his company was not involved in transport business and they do not even have a licence to operate public transport. He learned about the accident through the press. He said that the person who was driving the bus was not an employee of Akamba. In cross-examination he testified that Fred Kijambu of Gasso collected the registration Card on 24/2/88 but the question of transfer was not discussed. He said that at the of the accident the bus was not the property of Akamba although it was still registered in the names of Akamba. According to D.2 the company was to wait for Kamuru to effect transfer. Gasso as a buyer was supposed to pay for the transfer but it has never done so. At the close of the defence case, both counsel addressed me on the issues and I shall consider their submissions when considering the issues. The first issue is whether there is any cause of action against the defendant. There appeared to be no dispute about the fact that the plaintiff was a lawful passenger on a bus UXS 106 which got involved in an accident on 10/10/89. miss Mulyagonja, counsel for the defendant submitted that although the defendant company appeared as the registered owner of motor vehicle UXS 106 in the registration book, the defendant company was not the owner of the vehicle as the vehicle had been sold to Joy Kusiima who later sold it to Gasso Transport Services. She submitted that the provisions of S.49 of Traffic and Road Safety Act 1970 had been rebutted by the defence evidence. Counsel further submitted that the driver of the bus was not a servant or agent of the defendant company and therefore the company can not be held vicariously liable for his acts. Counsel submitted that the plaintiff has failed to prove a duty of care owed to her by the defendant company and counsel prayed that the suit be dismissed. on the same issue Mr. Mpungu submitted that the vehicle belonged to the defendant company because it was registered in the names of the company Joy Kusiima and Gasso Transport services had only equitable interest in the bus. According to counsel the sale to Kusiima was hire purchase and that the defendant remained the legal owner until all the installments were paid. Counsel submitted that it was wrong for the defendant company not to have transferred the vehicle as directed by