[2024] UGHC 1005

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA CIVIL APPEAL NO. 0010 OF 2021

# (ARISING FROM CIVIL SUIT NO. 035 OF 2012)

# BAYLOR COLLEGE OF MEDICINE (CHILDRENFOUNDATION)UGANDA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

GATLUAK THIEL::::::::::::::::::::::::::::::::::::

# BEFORE HON. JUSTICE COLLINS ACELLAM

#### (Appeal from the judgement and orders of Her Worship Janeva Natukunda, Chief 20 Magistrate at the Chief Magistrates Court of Arua at Arua dated 2^nd December 2020 in Civil Suit No. 035/2012)

# JUDGEMENT OF THE COURT:

$\mathsf{S}$

### **Brief introduction**

This appeal is lodged by a Notice of Appeal and Memorandum of Appeal for orders that; a) The appeal be allowed.

b) The judgement and decree of the Chief Magistrate's Court be set aside. 30 c) The Respondent pays the Appellant's costs in the Chief Magistrate's Court and in this court.

## **Grounds of Appeal**

The grounds of Appeal as seen in the Memorandum of Appeal state;

- The Learned Trial Chief Magistrate erred in law in holding that the Plaintiff had $1.$ locus standi to institute a suit under the Law Reform (Miscellaneous Provisions) Act for the benefit of the family members of the late Gai Gatkwoth. - 2. In the alternative and without prejudice to the foregoing, the learned trial Chief Magistrate erred in law and fact in making an award in the suit at the instance of the Plaintiff who did not appear in Court to testify. - 3. The Learned Trial Chief Magistrate erred in law and fact and failed to properly 45 evaluate the evidence on record thereby coming to the erroneous conclusion that the deceased died of electrocution which was caused by servants of the Appellant. - The Learned Trial Chief Magistrate erred in law and fact when she rejected the $4.$ Appellant's evidence that the generator which allegedly caused the electrocution was, at all material times, operated and under the control of Jane Drijaru t/a Premier Enterprises, an independent contractor.

- 5. The Learned Trial Chief Magistrate erred in law in drawing a negative inference from the Defendant's failure to take out a $3^{rd}$ Party Notice against Jane Drijaru $t/a$ Premier Enterprises thereby shifting the burden of proof to the Defendant. - The Learned Trial Chief Magistrate erred in law and fact in holding that the 6. Defendant was liable for failing to reasonable care to ensure safety of people who came to the venue "where they used a generator and live wires which were not insulated." - 7. The Learned Trial Chief Magistrate erred in law and fact in holding that the Defendant breached the duty of care as established in Donoghue vs Stevenson. - The Learned Trial Chief Magistrate erred in law and fact in awarding to the Plaintiff 8. Ug. Shs 30,000,000/ $=$ as general damages.

#### Grounds in Opposition

In opposition to the Appeal, the Respondent filed written submissions wherein he states 20 that the Learned Trial Magistrate was correct, lawful and justified in holding that the Plaintiff had locus standi to institute a suit under the Law Reform (Miscellaneous Provisions) Act as the plaint and evidence presented prove that he is a brother to the deceased. He attended the hearing but was unfortunately repatriated by UNHCR to South Sudan thus he could not personally attend but his witnesses kept appearing in 25

Court. No law prohibits a Trial Magistrate or Judge from making awards in a suit just because the Plaintiff did not appear in Court.

The Learned Trial Magistrate properly and judiciously evaluated all the evidence on record and correctly and justifiably reached the decision that the deceased died of electrocution caused by the Appellant. She correctly found that the Appellant failed to 30 take reasonable care to ensure the safety of people who came out to the venue, and the Appellant breached their duty of care. The Learned Trial Magistrate was correct and justified to reject the Appellant's evidence that the generator which caused the electrocution was at all material times operated and under the control of an independent contractor and that the Appellant should have taken out third party notice if they claimed 35

contribution or indemnity.

The amount of general damages are at the discretion of Court. Section 207(1)(a) of the Magistrates Court Act Cap 16 provides for a limit on the pecuniary jurisdiction for the trial court and ugx 30,000,000/= is well below the ugx 50,000,000/= as provided by law. The award of general damages was fair, just, proper and commensurate.

#### Representation

45 During the trial, the Appellant was represented by $M/S H \& G$ Advocates (Formerly Kateera & Kagumire Advocates) whereas the Respondent was represented by M/S Alaka & Co. Advocates.

I have had the opportunity to peruse through the file inclusive of all pleadings and their 50 Annextures. Both Counsel for the Appellant and Respondent filed their submissions which I have duly put into consideration to come up with this decision. There is a Rejoinder on record. I shall now proceed to enlist the grounds of appeal in contention.

$\mathsf{S}$

AAA

- The Appellant proposed to argue the grounds as follows; $\mathsf{S}$ - Grounds 1 and 2 jointly; $\blacktriangleright$ - Grounds $3,4,5,6$ & 7 jointly: $\blacktriangleright$ - $\blacktriangleright$ Ground 8,

and I shall follow this order in resolution of the grounds.

#### 10

### Ground 1

The Learned Trial Chief Magistrate erred in law in holding that the Plaintiff had locus standi to institute a suit under the Law Reform (Miscellaneous Provisions) Act for the benefit of the family members of the late Gai Gatkwoth.

#### Ground 2

In the alternative and without prejudice to the aforegoing, the learned trial Chief Magistrate erred in law and fact in making an award in the suit at the instance of the Plaintiff who did not appear in Court to testify.

In his submission, the Appellant submits that whereas it was pleaded in para 1 of the plaint that the plaintiff/respondent was a brother to the deceased, neither did the respondent appear in court to testify nor was a scintilla of evidence led to prove that the respondent was in any way related to the plaintiff, not in the very least adduce Letters of

- 25 Administration to the deceased's estate or a Grant of Probate. Reference was made to Section 6 of the Law Reform (Miscellaneous Provisions) Act. Locus is a matter of law and therefore despite PW1's evidence, it was pertinent for the Trial Court to go an extra mile to investigate whether the Respondent was in fact a brother to the deceased. - 30 In response, the Respondent affirms the decision of the Trial Court in holding that the Plaintiff had locus standi to institute the suit on behalf of the family members of the deceased, based on the evidence presented in the plaint and the testimony of PW1 on court record. There is totally no law that stops a Trial Magistrate or Judge from making awards in a suit just because the Plaintiff did not appear in Court. It is not true that the - 35 Plaintiff/Respondent did not attend Court deliberately, it was unfortunate that he was unable to attend but the strength of a suit depends on evidence produced/adduced by witnesses not on number of attendees of court hearing by a party.

#### **Consideration of Court**

#### Duty of the first Appellate Court.

In Father Nasensio Begumisa & 3 Ors vs Eric Tebebuga SCCA No. 17 of 2002, Court held that, "The duty of a first appellate court is to subject the evidence on record to an exhaustive scrutiny, re-evaluate it and come to its own conclusion. The Court must then make up its own mind not disregarding the judgement of the trial court but carefully weighing it in full consideration."

The first appellate Court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. Then it must make up its own mind not disregarding the judgement appealed from but carefully weighing and considering it, see the decision

in Kifamunte Henry vs Uganda SCCA No. 10 of 1997. 50

Section 6(1) of the Law Reform (Miscellaneous Provisions) Act Cap 79 states that; Every $\mathsf{S}$ action brought under section 5 shall be for the benefit of the members of the family of the person whose death has been so caused and shall be brought either by and in the name of the executor or administrator of the person deceased or by and in the name or names of all or any of the members (if more than one) of the family of the person deceased.

Section 5 states that; "If the death of any person is caused by any wrongful act, neglect or default of any person, and the act, neglect or default is such as would, if death had not ensued, have entitled the person injured by it to maintain an action and recover damages in respect of it, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to a felony."

Under Sections 5 and 6 of the Law Reform (Miscellaneous Provisions) Act Cap 79 as highlighted above, Section 6 requires that such a suit will be filed by or in the name of the executor or administrator of the person deceased, or by and in the name or names of 20 all or any of the members of the family of the deceased person. In analysis of the evidence on record, paragraph 1 & 3 of the plaint state that the deceased was a cousin brother to the Plaintiff, and this is also affirmed by the evidence of PW1. None of this evidence was rebutted by the defence at trial and as such is considered true by this Court, I therefore

do not fault the Learned Trial Magistrate for holding as such. $25$

In the case of Chebrot Fred Vs Uganda Wildlife Authority (UWA) HC Misc. Cause No. 47 of 2022, Court stated that; "From the understanding of the above provisions (Section 5 and 6 of the Law Reform (Miscellaneous Provisions) Act Cap), it is clear that where death is caused

by a wrongful act, the beneficiaries or members of the family of the victim are entitled to sue the 30 person who caused such unlawful death for damages... In this case, what is clear from the pleadings is that there was death of the person, and the father of the deceased filed this application seeking compensation for the death of his son."

In the instant case, as stated above, the Plaintiff in paragraph 1 and 3 of the plaint clearly 35 states that he is /was a brother to the deceased thus part of members of his family, and PW1 also affirms this in his testimony to Court. The Respondent states that this grants him locus standi to institute the suit against the Appellant. The Appellant however disagrees with this assertion mainly because the Respondent himself did not personally appear in Court to testify and adduce evidence regarding his relationship with the 40 deceased and to prove his case.

I respectfully disagree with the opinion of the Appellant. As rightly stated by the Respondents, there is no law that bars a Judicial officer from making awards in a suit simply because the Plaintiff did not appear in Court. The Learned Trial Magistrate 45 therefore rightly evaluated all the evidence adduced on record to come up with a decision that a relationship as required by law between the plaintiff/respondent and the deceased was established as the provision states that any member of the family of the deceased can sue, PW1 stated that the deceased was a cousin brother of the plaintiff, and this was not contradicted in cross examination. There was and is no need for a Grant of Probate or 50

$\mathcal{A}\mathcal{A}$

Letters of Administration in a case of this nature that involves the death of a 14-year-old.

There is no property registered in the deceased's name or anything of the sort that $\mathsf{S}$ requires the same.

This court is therefore satisfied that the Plaintiff/Respondent proved that he indeed had locus standi to institute this suit, as a cousin brother of the deceased in compliance with the provision under the Law Reform (Miscellaneous Provisions) Act. Appearance of the Plaintiff in court to attend the hearing was not/is not mandatory under the law as long as evidence is adduced to prove his case and the case proceeds interparty.

Grounds 1 & 2 therefore fail and are resolved in the negative.

## Grounds 3, 4, 5, 6 & 7

3. The Learned Trial Chief Magistrate erred in law and fact and failed to properly evaluate the evidence on record thereby coming to the erroneous conclusion that the deceased died of electrocution which was caused by servants of the Appellant.

4. The Learned Trial Chief Magistrate erred in law and fact when she rejected the Appellant's evidence that the generator which allegedly caused the electrocution was, 20 at all material times, operated and under the control of Jane Drijaru t/a Premier Enterprises, an independent contractor.

5. The Learned Trial Chief Magistrate erred in law in drawing a negative inference from the Defendant's failure to take out a 3^rd Party Notice against Jane Drijaru t/a

25 Premier Enterprises thereby shifting the burden of proof to the Defendant. 6. The Learned Trial Chief Magistrate erred in law and fact in holding that the Defendant was liable for failing to reasonable care to ensure safety of people who came to the venue "where they used a generator and live wires which were not insulated."

7. The Learned Trial Chief Magistrate erred in law and fact in holding that the 30 Defendant breached the duty of care as established in Donoghue vs Stevenson.

In his submission, the Appellant submits that the Respondent at the trial court failed to lead any direct evidence to prove his claim, as all the evidence on record was hearsay and full of falsehoods. PW1 did not witness the incident firsthand, PW2 presented no scene of crime report and no pictures of the alleged live uninsulated wires that he testified to have seen, he did not interview some people in attendance at the scene or get statements from the two boys who allegedly witnessed the incident. PW1, PW2 & PW4 were not around at time the alleged electrocution occurred, PW1's whole testimony was gleaned

from his interaction with Doup Nyang who never testified to court, and PW4 was only 40 informed by the school watchman about the incident. Reference was made to Section 59 of the Evidence Act. All their evidence was therefore completely hearsay.

He further asserts that, even if it were true that indeed the deceased was electrocuted, his alleged electrocution and eventual death was not as a result of the Appellant's negligence 45 and the appellant had engaged the services of an independent contractor to provide a generator and a public address system at the event. The Appellant relied on D. Exh.1 as presented under evidence on record and was corroborated by DW1 and 2 and DW4 also gave uncontroverted evidence during trial. Neither the Appellant nor its employees were responsible for the generator and the public address system as they had been procured

50 from an independent contractor Premier Enterprises.


- In response, the Respondent states that the Learned Trial Magistrate properly and $\mathsf{S}$ judiciously evaluated all the evidence on record and correctly reached the decision that the deceased died of electrocution caused by the Appellant. The Appellant failed to take reasonable care to ensure safety of the people who attended the event thus breached its duty of care as established in the case of Donoghue vs Stevenson. The Respondent adduced evidence to show that the deceased died as a result of electrocution through the evidence - 10 of PW1, 2, 3 and 4 and the Postmortem report marked PEx.1 and all this evidence is consistent, cogent, clear and well corroborated. Their evidence is based on what they saw, observed, read and documented and what is within their knowledge. - He further states that, the Appellant should have added Premier Enterprises as a third 15 party if they felt it should have been liable for any damage that would be suffered by them or they are entitled to contribution or indemnity against her, as rightly decided by the Learned Trial Magistrate and the decision to reject the evidence presented. DW2 testified in Court but did not claim ownership of the generator, and DW4 stated that he was engaged for his services by the Appellant. 20

On analysis of all the evidence on court record, this Court is fully convinced that the conduct of PW2, D/AIP Afemia Alex who was the scene of crime officer was not commendable, he never took any pictures of the scene of crime or present any to court, he didn't take any statements and interviews for the people at the scene of crime which $25$ would be highly relevant in a case of this nature, and he also didn't ensure that the uninsulated wires at the scene as alleged were exhibited into evidence. However, whereas this Court does not take lightly all these omissions by the scene of crime officer, there is more evidence on record that this court will rely on to re-evaluate the decision of the trial court and come up with its own finding in this matter. 30

The postmortem report presented in evidence is reliable proof of the cause of death of the deceased and the cause of death is electrocution as stated therein. The evidence of PW3 as a medical expert can be relied on, corroborated by the testimony of PW1, 2 and 4 to conclude that the deceased died as a result of electrocution and on account of the 35 evidence of PW1 and PW2, it is most probable that this occurred at the event organized by the Appellant where the deceased's body was first moved from there to the clinic, and then to the hospital of PW3 where the deceased was pronounced dead. It is unbelievable/improbable that DW2 and 4 deny ever having been informed of the electrocution incident yet they were at the scene of the incident. Whereas as alleged by 40 the Appellants, many very crucial or important witnesses were not brought to court to testify to the occurrence of the death of the deceased, the case of the Respondents is still supported by credible evidence of the witnesses that can be relied.

- In the case of Kabaco (U) Ltd vs Turyahikayo Bonny HCCS No. 014 of 2021, Court 45 stated that; "Therefore, whereas the legal burden solely lies upon the plaintiff and does not shift, the evidential burden keeps shifting depending on the facts alleged by either side. I find the dicta by the Supreme Court of Kenya in *Presidential Election Petition* No.1 of 2017 between Raila Amolo Odinga& Another vs. IEBC & 2 Others (2017) - KLR very elaborative on this issue where court observed thus: "Though the legal and 50 evidential burden of establishing the facts and contentions which will support a party's case is static and "remains constant through a trial with the plaintiff, however,

$\overline{A}$

"depending on the effectiveness with which he or she discharges this, the evidential 5 burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced... In other words, while the petitioner bears an evidentiary burden to adduce 'factual' evidence to prove his/her allegations of breach, then the burden shifts and it behooves the respondent to adduce evidence to prove compliance with the law....." 10

Therefore, in the instant case, at the point when the plaintiff / respondent proves their case to satisfy the legal burden and standard of proof in alleging their facts, the evidential burden of proof then shifts to the defendant/appellant, who herein failed to discharge their obligation on the same. The Appellant never carried out any due diligence or

- investigation to dispute the claims of the respondent and did not object to all this evidence being put on the record. They also didn't explore the option to take on third party proceedings to shift liability to Premier Enterprises who they allege owned the generator and public address system that caused the electrocution and eventual death of - the deceased. The witnesses of the defendant / appellant claimed no knowledge of the 20 incident, yet they were alleged to have been on scene and Police was notified of the same, the askari of the school (premises where the event occurred) informed the headteacher of the school who also testified and affirmed the case of the Plaintiff as PW4. All this shows this court that the Plaintiff discharged their legal burden and standard of proof on - a balance of probabilities. 25

I therefore do not fault the Learned Trial Magistrate for holding that the cause of death of the deceased was indeed electrocution, this was a result of the breach of the duty of care owed to the Respondent by the Appellant as a 'neighbour' in law, who was affected by his omission to leave uninsulated wires at the tent of the event organized. The

30 Appellant therefore breached his duty of care as established under the case of Donoghue vs Stevenson and is therefore liable. The references made by the Appellant that the evidence of PW1, PW2, PW3 and PW4 was hearsay also cannot stand because all they testified about were details within their knowledge that they saw and/or heard and joined together, it made up the full proof that the Plaintiff / Respondent needed to prove his 35

case against the Appellant.

The fact that Premier Enterprises was or was not an independent contractor in the event, may not be relevant to this case. The Appellant acknowledges that they organized the event where the deceased was electrocuted from, and its officers were on ground. The evidence on record proves/proved that had the Appellant while organizing their event exercised reasonable care, the deceased may not have been injured. This makes them liable.

Grounds 3, 4, 5, 6 & 7 therefore fail and are resolved in the negative. 45

#### Ground 8

The Learned Trial Chief Magistrate erred in law and fact in awarding to the Plaintiff Ug. Shs 30,000,000/ $=$ as general damages.

In his submission, the Appellant submits that the award of ugx. 30,000,000/= as damages in the instant case is too high and would need to be substantially reduced to award

$\Delta \Omega$

damages of a modest nature such as ugx. 5,000,000/= as it is not possible to accurately 5 calculate the loss of prospective happiness in the case of a child. Similarly, the award of damages to the Respondent and his brothers and the nephew of the deceased was erroneous as they were not dependents of the deceased and did not prove any pecuniary loss or dependency lost as a result of the death of the deceased.

In response, the Respondent states that the amount of general damages are at discretion of Court. An award of ugx 30,000,000/= is well within the pecuniary jurisdiction under Section 207(1)(a) of the Magistrates Court Act Cap 16 with a matter before a Chief Magistrate as the one in the instant case.

$25$

I opine that as stated by the Respondent, the award of general damages is at the discretion of court, and so is the amount granted. 'An appellate court will not interfere with an award of general damages unless the trial court acted upon a wrong principle of law or that the amount is so high or so low to make it an erroneous estimate of damages to which the plaintiff is entitled.' (See the case of Mutashwera Vs Ryangombe Civil Appeal No. 181 of 2015)

I therefore find no reason to fault the amount awarded by the Learned Trial Magistrate as it is well within the threshold in the pecuniary jurisdiction allowed in matters before that court. I therefore find that the award was justifiable in the circumstances.

Ground 8 therefore also fails.

As all the grounds of this appeal have been resolved in the negative, I accordingly dismiss this appeal as a resultant order. 30

The submissions of the Respondent do not state any orders prayed for before this Court and as such this court is only inclined under the provisions of Article 126(2)(e) of the Constitution of the Republic of Uganda, 1995, Section 33 of the Judicature Act and Sections 27 and 98 of the Civil Procedure Act to award costs of this appeal to the Respondent, and a resultant order from the dismissal of this appeal that the judgement and orders of the trial court remain in place.

I so order.

.............day of. Dated at Arua this .......

45 Collins Acellam JUDGE

50