[2024] UGHCCD 169

## 5 **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **(CIVIL DIVISION)**

## **CIVIL SUIT NO. 144 OF 2022**

### **KABANDA JANE NABULIME :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF**

## 10 **VERSUS**

## **1. Y. Y COACHES AND COURIER SERVICES LIMITED**

## **2. YUSUF YUNUS OKELLO :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANTS**

## **BEFORE: HON. JUSTICE ESTA NAMBAYO**

## **RULING ON THE PRELIMINARY POINTS OF LAW**

- 15 The Plaintiff, Kabanda Jane Nabulime, brought this suit under the Law Reform (Miscellaneous Provisions) Act, against Y. Y Coaches and Courier Services Limited & Yusuf Yunus Okello (hereinafter referred to as the 1st & 2nd Defendants respectively), seeking for general damages, aggravated damages, punitive damages, special damages, interest and costs of the suit following an accident along Kampala - Jinja Highway, at Nakawa in 20 Kampala, where Motor Vehicle Regn. No. UAV 205T, collided with MV Regn. No. UAR - 392E and thereafter knocked Mr. Kabanda John, husband to the Plaintiff, killing him instantly.

It is the Plaintiff's claim that on the fateful day, the said MV Regn No. UAV 205T owned by the 2nd Defendant was negligently driven by Ahmed Abdullah Hassan, the Defendants'

25 driver/employee and had lawful control over the vehicle, hence this suit.

## **Representation**

Learned Counsel Steven Kabuye appeared for the Plaintiff while Counsel Hassan Kamba represented the Defendants.

When the matter came up for hearing, Counsel Kamba raised four (4) preliminary 30 objections which he framed as follows: -

- 1. Whether the action against the 1st defendant is maintainable - 2. Whether the 2nd defendant can be vicarious liable for actions of the alleged employee (driver) who is not sued - 3. Whether given that the Plaintiff cannot recover damages on account of conceded 35 old age of the deceased the defendants can be vicarious liable for economic loss to the Plaintiff. - 4. Whether the suit is maintainable under the Law Reform (Miscellaneous Provisions) Act.

## **Resolution**

# **Preliminary Objection 1: Whether the action against the 1** 40 **st Defendant is maintainable**

Counsel submitted that whereas in para 5(e) of the plaint the plaintiff avers that Ahmed Abdallah is an employee for both Defendants and that both Defendants are vicariously liable for his actions, there is no evidence to show that the 1st Defendant is vicariously 45 liable for Abdallah's actions. He referred this court to the accident report which is annexure 'A' to the plaint where the vehicles involved in the accident identified as MV Regn. No. UAV 205T, MV Regn. No. UAX 205X and MV Regn. UAR 392E and none of them is indicated as belonging to the 1st Defendant.

Counsel explained that the plaintiff states under para 5(f) of the plaint that the 2nd 50 Defendant is the owner of Y. Y Coaches Bus Registration No. UAV 205T. That bearing in mind para 5(f) of the plaint and annextures 'A' and 'B' thereto, the suit against the 1st Defendant is embarrassing and discreditable. He prayed that following the above facts, this court finds that the suit against the 1st Defendant is not sustainable against him and should be dismissed with costs under Order 6 rule 29 of the CPR as the 1st Defendant 55 cannot be held vicariously liable for actions of a person who is as indicated in the plaint not its employee.

In reply, counsel for the Plaintiff relied on Order 1 rule 7 of the CPR and explained that a Plaintiff who is in doubt may join two or more Defendants so that the question as to which of the Defendants is liable and to what extent, may be determined between all parties. That in this case, the Bus that knocked the deceased had inscriptions of the 1st 60 Defendant's brand of, "YY Coaches" and that the police accident report indicates that MV Regn. No. UAV 205T was registered in the names of the 2nd Defendant. That this created a doubt in the Plaintiff's mind as to which of the Defendants is liable.

Counsel relied on paragraph 5 (b) of the Defendants' written statement of defence and contended that the 1 65 st Defendant admits that MV Regn No. UAV 205T was driven by the 1 st Defendant's employee at the time of the accident. He relied on O.6 r.7 of the CPR and the case of **Interfreight Forwards (U) Ltd –v- East African Development Bank, CA No. 33 of 1992 [1993] UGSC** to aver that the Defendants admitted being employers of Ahmed Abdullah Hassan who was driving the vehicle at the time of the accident.

70 Counsel further submitted that in the case of **Okupa –v- Attorney General & 13 Ors. MC No. 14 of 2005 [2018] UGHCCD 10**, vicarious liability is defined to mean a legal doctrine where a person himself blameless is held liable for another person's conduct. He explained that the ingredients for the doctrine to apply are that; (i) there must be an employer-employee relationship; (ii) the tort must be committed by the employee and; 75 (iii) the employee must have committed the tort in the course of official business.

Counsel relied on paragraphs 5 (e) of the plaint & 5 (b) of the Joint written statement of defence to illustrate the employer-employee relationship.

In regards to the second and third ingredient, counsel relied on paragraph 5 (b) (c) and (e) of the plaint and contended that the Defendants in their written statement of defence

80 do not dispute this fact that the driver was in the course of his official business. He cited the case of **Muwonge –v- Attorney General [1967] EA 17** where Court held that; - "an act may be done in the course of the servant's employment so as to make his master liable even though it is done contrary to the orders of the master and even if the servant is acting deliberately wantonly, negligently or criminally for his own benefit, never the 85 less, if what he did is merely a manner of carrying out what he was employed to carryout then his master is liable."

That in the instant case, Ahmed Abdallah being an employee of the 1st Defendant as specifically pleaded and admitted by the Defendants in the joint written statement of defence, it established liability of the 1st Defendant and as such, the preliminary point 90 raised by the Defendants' counsel is not tenable and does not warrant dismissal of the suit under Order 6 Rule 29 of the CPR against the 1st Defendant.

#### **Analysis**

**Order 1 Rule 3 of the CPR** provides for who may be joined as defendants and states that; -

95 "All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against those persons, any common question of law or fact would arise."

**Rule 5** provides that the Defendant need not be interested in all the relief claimed and 100 states that; -

It shall not be necessary that every defendant shall be interested in all the relief claimed in any suit against him or her."

**Rule 7** provides that: -

"Where the plaintiff is in doubt as to the persons from whom he or she is entitled to

105 obtain redress, he or she may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties."

In this case, under paragraph 5(e) of the plaint, the Plaintiff states that Ahmed Abdullah Hassan was the Defendants' employee and that he was under lawful control of the 110 vehicle described in paragraph 5 (d). That he was a licensed driver and was expected to act as a reasonable driver. This is admitted by the Defendants under paragraph 5 (b) of their joint written statement of defence.

Under paragraph 5(f), the Plaintiff states that the 2nd Defendant is the owner of the Y. Y Coaches bus registration No. UAV 205T, which at the time of the accident was driven by 115 their employee in the course of his lawful duty. This statement is also admitted by the Defendants under paragraph 5 (c) of their joint WSD.

Under paragraph 5 (g) of the plaint, it is stated that the Defendants accepted liability and contributed 1,000,000/- towards burial expenses and promised to compensate the Plaintiff. This is admitted by the Defendants under their paragraph 5 (d) of the WSD.

120 The Plaintiff further refers to the Police report which is annexure 'A' to the plaint and the Defendants admit it in paragraph 5 (e) of the joint WSD. The Police report confirms that the Isuzu Bus No. UAV 205T that was involved in the accident was owned by the 2nd Defendant and driven by Ahmed Abdallah Hassan.

Much as the police report does not mention the 1 st Defendant, the Defendants admit that the 2 125 nd Defendant is the owner of the Y. Y coaches bus registration No. UAV 205T that was involved in the accident and that they even went ahead to contribute 1,000,000/- towards burial expenses on compassionate grounds.

Looking at the pleadings made by both parties, I find that there seems to be a relationship between the Defendants that would require further interrogation by this 130 court. The submissions of Counsel for the Defendants that the Plaintiff has no claim against the 1st Defendant at this stage is premature and as they seem to be an afterthought going by the Defendants' statements in the joint WSD. It is only fair that the Plaintiff is given opportunity to present her case for evaluation by this court.

# **Objection 2: Whether the 2nd Defendant can be vicariously liable for actions of a** 135 **driver who is not sued and can thus not be found culpable for negligence in absence**

Counsel for the Defendants submitted that vicarious liability tenet does not replace the need to first prove the defaulting employee's primary liability for his tort before liability is transferred to the employer. That the employee and the employer must be jointly and severally liable for the employee's tort for the due process and fair procedure to be

- attained. He explained that absence of the tortfeasor denies the 2 140 nd Defendant fair hearing and that the court cannot make any finding of negligence as pleaded in paragraph 6 against a 3rd party who is not party to the suit under our constitutional dispensation. Counsel relied on the cases of **Shabique Clance Vsomar Palmer & Anor, SC, Jamaica page 36 at paragraph 96, Carolyne Turyatemba & Anor –v- AG & Anor** - 145 **Constitutional Petition No. 15 of 2006, Colonial Mutual Life Assurance society-vproducers and Citizens Co-operative Assurance Co. of Australia Ltd (1931) 46 CLR 41 at 49 and The Board of Governors of St. Mary's School –v- Boli Festus Andrew Sio CACA No. 413 of 2017 (Kenya) and Ngumboa –v- Mwatate & Ors [1988] KLR 549 cited in Odunga's Digest on Civil case law and procedure, Volume 10 (New Edition) at page 8299.** He prayed that this court dismisses the suit against the 2nd 150 defendant.

In reply, Counsel for the Plaintiff submitted that the **Turyatemba case (supra)** can be distinguished from this case in that in the **Turyatemba case**, it is restricted from seeking or enforcing rights against a third party who is not made party to the suit and that in 155 this case, the Plaintiff is not seeking any remedies from Abdallah Ahmed Hassan (the driver). That under vicarious liability there is no mandatory requirement to sue the tort feasor together with the Employer.

In regard to the case of **The Board of Governors of St. Mary'^s case,** Counsel submitted that the issue was not employer-employee relationship, but rather actions of an 160 independent contractor as opposed to vicarious liability. That in the **St. Mary'^s case**, the driver was for the independent contractor unlike in the current case where the Defendants admit that it was their driver who caused the accident. Counsel prayed that this court be pleased to overrule this objection.

#### **Analysis**

**Black's Law Dictionary 10th** 165 **Edition** defines vicarious liability as; "liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties – also termed imputed liability." In the **East African Cases on the Law of Tort by E. Veitch (1972 Edition) at page 78,** 170 an employer is liable for the acts of his employees or agents while in the course of the employer's business or within the scope of employment. This liability arises whether the acts are for the benefit of the employer or the agent. In deciding whether the employer is vicariously liable or not, the questions to be determined are;

- a) whether or not the employee or agent was acting within the scope of his 175 employment; - b) whether or not the employee or agent was going about the business of his employer at the time the damage was done to the plaintiff.

Where the employee or agent goes out to perform his or her private business, the employer will not be liable for the tort committed.

180 Counsel for the Defendants submitted that court cannot make any finding of negligence against a 3rd party, in this case the driver, when he is not party to the suit.

In **Phenehas Agaba –v- Swift Freight International Ltd**, **HCCS No 143 of 2000,** it was held that;

"where an agent, makes a contract on behalf of the Principal, the contract is that of the

185 principal, not that of the agent, and Prima Facie at Common Law the only person who can sue or be sued is the principal." **(I have underlined for emphasis)** In that case, the suit was found to be unsustainable against the defendant who was a

mere agent of a disclosed principal. I find the decision in this case persuasive.

In **Akware Caroline Osilo –v- Gaaga Enterprises Ltd HCCS No. 271 of 2011**, court 190 found the defendant vicariously liable for the negligent acts of its driver. The driver was not party to the suit. (See also **Bagenda Byabe Tommy -v- Pioneer Easy Bus Limited HCCS No. 36 of 2016 and Paul Byekwaso –v- Attorney General CACA No. 10 of 2002).**

In motor vehicle accident cases, what matters is for the Plaintiff to show that the driver 195 was the owner's servant or that at the material time, the driver was acting on the owner's behalf as his agent. The Plaintiff must also establish the agency relationship and show that the driver was using the car in the performance of the task or duty delegated to him by the owner or at the owner's request. The driver need not be sued jointly with the owner of the motor vehicle as argued by Counsel for the Respondents.

- 200 In this case, the plaintiff pleaded in satisfaction of the above requirements under paragraphs 5 (e) and (f) of the plaint and the Defendants admit the Plaintiff's facts under paragraphs 5 (b) and (c) of their joint WSD. What this court has to determine therefore, is whether the facts brought before the court and the evidence that the parties are bound to present lead to the conclusion that the Defendants' driver was negligent in 205 the course of his duties and whether the Defendants are vicariously liable for his actions. - **Preliminary Objection 3: Whether given that the Plaintiff cannot recover damages on account of conceded old age of the deceased the defendants can be vicarious liable for economic loss to the Plaintiff**

Counsel for the Defendants relied on the death certificate of the Plaintiff's husband which 210 is annexure 'c' to the plaint and submitted that the Plaintiff's husband was 65 years of age at time the accident occurred and that as such, his estate or the plaintiff cannot recover damages for injury. He relied on the case of **Grace Kimera –v- Kibaaya HCCS No. 23 of 1994 (1996) where Kato. J (as he then was held that;**

"in Uganda the working life expectancy is 55years only and the deceased being 76 years 215 had no more life to expect having gone beyond his usefulness. Therefore, no damages maybe awarded to his dependants for loss of dependency"

**That the Judge went on to hold that** 'where a person does not die immediately after the accident his estate is entitled to claim for damages for the pain and suffering inflicted on the deceased'

- 220 Counsel submitted that in this case, given that life expectancy in Uganda is now 62 years and the deceased was 65 years at the time of his death, the suit cannot be maintained for the beneficiaries. Counsel further submitted that the Defendants cannot be liable for economic loss if the driver cannot be liable in general damages on account of absence of any action against the driver. He relied on the case of **Woodland –v- Essex County** - 225 **(2913) UK SC 66**

In reply, Counsel for the Plaintiff relied on the case of **Amina Musoni –v- Akamba (U) Ltd & GASO Transport Services Ltd HCCS No. 656 of 1991[1996] KALR,** where court held that;

"the demographic reports recently said that life expectancy of a man in Uganda is 44 230 years, self-employed men in Uganda can live for even longer than 60 years depending on the kind of life, his occupation, his health and social status."

Counsel submitted that in that case, court allowed 6 more working years of life for the deceased. He prayed that this court overrules the submission of Counsel for the Defendants and proceeds to hear the matter under Art. 126(2) (c) of the 1995 235 Constitution of Uganda.

#### **Analysis**

## **In Mukisa Biscuit Manufacturing Co Ltd –v- West End Distributors Ltd [1969] 1 EA 696 per Sir Charles Newbold P, at page 701 court noted that;**

"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure

240 point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." **( underlining is mine for emphasis).**

The position of the law in **James Fredrick Nsubuga -v- Attorney General, HCCS No.**

**13 of 1993,** is that the award of general damages is in the discretion of court, and is 245 always as the law will presume to be the natural and probable consequence of the defendant's act or omission.

In the case of **Robert Coussens –v- Attorney General, SCCA No. 08 of 1999,** it was held, inter alia,

"that a party claiming damages should lead evidence or give an indication of a figure of 250 what amount of damages ought to be awarded on inquiry as the quantum."

In **Kampala District Land Board & George Mitala –v- Venansio Babweyana SCCA 2/2007,** court noted that General damages are the direct probable consequences of the act complained of. Such consequences may be loss of use, loss of profit, physical inconvenience, mental stress, pain and suffering. General damages must be pleaded and

255 proved.

In this case, I find that it would be proper for the plaintiff to be given opportunity to present her case for consideration on general damages that she claims to have suffered, if at all. This way, the court will be guided on what amount of damages ought to be awarded. Any contentions will also be determined by the Court after a proper evaluation

260 of facts that will be adduced by both sides to the dispute.

## **4: Whether the suit is maintainable under the Law Reform (Miscellaneous Provisions) Act**

Counsel for the Defendants submitted that in **Grace Kamira –v- Kibaaya(supra),** where the deceased was beyond the life expectancy age and had out lived his usefulness and 265 did not die immediately, his estate recovered damages for pain and for burial expenses. That in the instant case, the deceased died immediately and the plaintiff suing in her personal capacity or otherwise cannot recover damages. That the suit for general damages is misconceived.

Counsel further submitted that only the estate can recover special damages since the 270 plaintiff submitted that the deceased was the sole bread winner. That the plaintiff having instituted the current suit as an individual and not an administrator or executrix, the suit is unmaintainable in law and should be dismissed with costs.

In reply, Counsel for the Plaintiff relied on S. 6 of the Law Reform (Miscellaneous Provisions) Act and submitted that under that provision, an action can be filed either by 275 a member of the family directly or by an Administrator or executor of the deceased's estate. That in this case, the widow filed the suit directly as a member of the family. He relied on the case of **Uganda Electricity Board –v- G. W Musoke CA No. 30 of 1993[1994]**

#### **Analysis**

280 **S. 6 of the Law Reform (Miscellaneous Provisions) Act, provides for beneficiaries of an action and/or the person to file a suit and states as follows;**

(1) Every 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

285 the name or names of all or any of the members (if more than one) of the family of the person deceased.

### **Member of the family is defined under S. 1(b) as;**

"member of the family" has the same meaning as in the Workers Compensation Act; but for the purposes of this Act, a person shall be deemed to be the father or mother or 290 son or daughter of a deceased person notwithstanding that he or she was only related to the deceased person illegitimately or in consequence of adoption; and, accordingly, in deducing any relationship which is included in this Act within the meaning of the expressions "father", "mother", "son" and "daughter", any illegitimate person and any adopted person shall be treated as being, or as having been, the legitimate offspring of 295 his or her mother and reputed father or, as the case may be, of his or her adopters;

# In **Uganda Electricity Board –v- G. W Musoke (supra),** court noted that;

"The provisions of the Fatal Accidents Act were incorporated in the law of Uganda in 1953 by the Law Reform (Miscellaneous Provisions) Act… It seems to me that the Purpose of the Act was to provide a new cause of action which would enable dependants of the 300 deceased to claim compensation for the loss suffered as a result of his death. It is true that section 8 of the Act does not use the word "dependants", but "members of the family". In my view, however, the intention was to provide for members of the family who were dependants of the deceased and therefore who had suffered pecuniary loss as a result of his death. In each case the question to ask is what pecuniary loss the 305 member of the family has suffered. He would claim to have suffered pecuniary loss if he had lost dependency on the deceased."

Under paragraph 5 (j) of the plaint, the Plaintiff states that the widow and others specified in paragraph 5 (i) of the plaint were entirely dependent on the deceased. Applying the case of **G. W Musoke (supra)** to the instant court case, I find that the plaintiff can file a 310 suit under the Law Reform (Miscellaneous Provisions) Act as a dependant to the deceased without letters of administration and/or being an executrix.

In the final result therefore, all the preliminary points of law raised by counsel for the Defendants fail and are hereby over ruled with costs.

I so order.

**Dated, signed and delivered by mail and on ECCMIS at Kampala on this 24th** 315 **day of October, 2024.**

**Esta Nambayo JUDGE**

**24th** 320 **/10/2024.**