[1999] UGCA 39

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

#### HON. MR. JUSTICE G. M. OKELLO, J. A. CORAM: HON. MR. JUSTICE A. TWINOMUJUNI, J. A. HON. LADY JUSTICE C. N. B. KITUMBA, J. A.

### CIVIL APPEAL NO. 22 OF 1999

#### **BETWEEN**

# MOHAMED HASSIR KALUBALA:::::::::::::::::::::::::APPELLANT

### AND

### <table> TRANSOCEAN (U) LTD.::::::::::::::::::::::::::::::::::::

(Appeal arising from the decision of the High Court (Mukanza J.) delivered on 30/6/98, whereby he dismissed the Plaintiff's suit).

# JUDGMENT OF G. M. OKELLO, J. A.

This is an appeal against the decision of the High Court (Mukanza J.) delivered on 30/6/98 whereby he dismissed the Plaintiff's suit (HCCS No.940/90)

The appellant had brought the suit in the High Court under the Law Reform Miscellaneous Provisions Act (Cap 74) for the benefit of members of the family of Sophia Nakityo who was on 10/2/90 knocked down and killed by the rsespondent's motor vehicle of registration No. UXM 127. In the suit, the appellant sought special and general damages arising from the death of the deceased who was his mother. It was alleged that the accident was caused by the negligence of one Ibrahim

Mayembe, a driver/servant or agent of the respondent acting in the course of his employment.

At the trial, the appellant called three witnesses including himself while the respondent called no evidence. Four issues were framed as follows:-

- whether the plaintiff has locus standi to bring this suit, $(1)$ - $(2)$ whether the accident did occur as alleged. - whether the accident was caused by negligence of the $(3)$ defendant's servant, and, - $(4)$ whether the defendant is vicariously liable.

The trial judge found all the above issues in the affirmative but dismissed the suit on the grounds that:-

- the plaintiff has failed to prove that he was himself $(a)$ also a dependant of the deceased, and; - $(b)$ he failed to parade in court the named dependants.

Aggrieved by that decision, the appellant instituted this appeal. There are nine grounds of appeal namely:-

> $(1)$ the learned trial judge erred in fact and law when, after rightly finding that the plaintiff/appellant had proved his case against the defendant/respondent, he failed to award compensation and damages to the dependants and the plaintiff respectively.

- (2) the learned trial .yudge erred in thct and law when he lreld that tlre children were not introduced before court whereas all the five childrer/dependants were present in court as per the adrnitted and unchallenged evrdelrce of PWI and PW2 and therefore canlc (o ^a wrong conclusion tlrat the children were uot introduced, - (3) in the allcrnative but witlroul pre.judice to the contents of ground 2 above, the learned trial judge erred in lhct and law wlren, after he had adnritted the evidcnce of PWI and PW2 that the children were in court and in fact after he had taken their particrrlars, he ignored and neglected to request tlre children/dependants of the deceased lo starrd so that he could see them and hence came to a wrong conclusion tlrat the children were Dot introduced before court rvhereas they were produced,

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- (4) in the otlrer alternative but rvithout preludice to ground 3 thereof, the learned trial judge erred in fact and law when he denied cornpensation to the dependants due to counsel's omission not to introduce the children to court one by one although they were actually present, - (5) the learned trial judge erled both in law and fact n,hen lre denied the children/dependants compensation on the ground that they rvere not introduced to court rvlrereas the plaintifflappellant had discharged a tegal burden ofproducing the children in court,

- (6) the learrred trial judge ened in fact and law when he failed to arvard special damages to the plaintitlTappellant on the ground that he had not produced reccipts whereas. dcspite the fact that the plainti{I/appellant had pleaded and proved the said damages irr evidence which rvas not challenged, - (7) that the learncd trial judge en'cd irr lact and law u,hcrr he exercised justice by givirrg undue regard to technicalities in deciding the case and consequently reached an trnfair and unjust clecision by denying the plaintifl' arrd the clependants substanlial justice,

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- (8) the learrred trial ..;udge ought to have found as a fact that:- - (a) the respondent did not adduce any evidence or at all to contradict the fact of the existence ol' tlre deceased's children. - (b) The fact of the deceased's children being present in court was proved by two witnesses (PWl and PW2) and was not contradicted by the respondent/defendant, - (c) as a coufi ofJustice, the ornission ofcounsel il' at all it r.vas rnade, not to introduce the children to court, slrould not have been blamed on the

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plaintiff and the dependants children to the extent of denl,ing tltetn cotnpensatiorr rvhcn the plaintiff/appellant had proved his case and all other legal reqtrirctnents had been satislied,

- (d) the plaintilf and the deceased's dependant children were enlitled to remedies prayed for, and - (e) after PW2 had tcstified that the childrert were ln court, the leartred judge would, if he wanted to look at thent, have requested theln to stand up, and - (9) the learned trial judge en'ed in law and facts when he failed to award the reliels prayed for by the appellant atier rightly finding that the appellant had proved his case on all the issues.

'fhere rvas also a cross appeal on the fbllorving two grottnds.-

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- (l ) that the learned trial .ludge ened in law and on the facts when he held that tlre respondent was vicariously liable for the negligence of the driver of the motor vehicle No. UXM 127, - (2) that the learned trial judge exercised wrong principles in his assessrlent and calculation of darrages and as such erred in larv rvhen he carne to a figure of 23,600,000/: as thc darnages he would award if the respondent had been produced in Court

At tlre lrearillg. Mr. Muhinrbura, learncd cottltsel for the appellartt, argued grounds l, 2, 3, and 5 of the nrain appeal together. His Dtattr criticisnr in these grounds wirs directed to the trial .1udge's relusal to arvard general danrages to tlrc dcpetrclants olt lhe gr<trrlld tlrat they were nol produced in 'l-he Altorrtcv Ocnerul Civil Apl)eal No. Il of 1993: 6uprantc Courl) (urtre l)orted). In botlr cases it was lrcld that where the dcPendants and their parliculars were not produced irt cottrt, no award of danragcs sltould be given to thern unless the court was satisfied with the explanation regarding the failure. Mr Muhimbura subrnitted that the holding in those cases was not applicable to the facts cll'the instant case. His reasons were that unlike in tltose cases, the dependants in this case rvcre brought to court though not paraded and that their particulars were given in the plaint in cotnpliance with section l0 of the Law Refortn N4iscellaneous Provisions Act

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Mr. Paul Palia Kiapi, learned counsel for tlre respondent, replied that Mohamed Nasinr Kalibala (PWl ) u,ho was the rnain witrtess made no O reference to the children dependants in his evidence and made no effort to produce thern in court. He added that even catherine Nab\$'eteme (PW2) referred to the dependants only in cross-examination when she answered that she knerv all the children of the deceased and that thev were "here". Learned counsel argued that the word 'here' used by the rvitness was vague as it could not necessarily mean that the dependants rvere in court then. He subnritted that the effect of failure to produce the dependants in court was the sarne rvith the eff'ect o1'failure to produce a docutnentary evidence ilt otte 's Possession

The necessity to produce the dependants in court is based on ground of prudence and for court to guard against fictitious claim. Oder JSC echoed in *Hadija Nakibuka's case supra* what the Supreme Court had said in UEB Vs GM Musoke, Civil Appeal No. 30 of 1993 (SC) *(unreported)* as follows:-

> "It follows therefore, that on grounds of prudence, persons claiming damages for dependency in such actions should be produced before the trial court, which must see that the particulars stated in the plaint, especially ages, are correct, since the amount of awards depend on the ages of the dependants such as children. It is also necessary for courts to be on their guard against fictitious claims."

In the instant case, the particulars of the dependants were given in paragraph 5 of the plaint. On the evidence, Nabweteme (PW2) stated in cross-examination that the children were 'here'. That meant that the children were in the court Hall where the witness was giving evidence. The argument of Mr. Kiapi that the word 'here' used by the witness was vague is therefore contextually untenable. It was up to the trial judge in a bid to guard against fictitious claim to take that opportunity to ask the children to stand up for the court's inspection. In my view the trial judge was not justified in denying the dependants damages on the ground that they were not produced in court. This ground would therefore succeed.

**Ground 4** is ably covered when handling grounds 1, 2, 3 and 5.

**Ground 6:** The appellant's complaint in this ground is about the failure of the trial judge to award him special damages. The appellant had purchase of a coflin, transporting the body of the deceased to burial site and feeding of rnourners. The trial judge refused to awarcl tlrat clairn because the appellant did not produce receipts supporting the expenditure. Mr. Kiapi, riglrtly in rny view, conceded that the trial judge was wrong in refusing lo au,ard those obviotrs clatnages. Thesc are loreseeable expenditures consequent upon death. A person losing a relative is liable to incur such expenditures. I think tlrat the appellant shotrld have been awarded thc clairn even withottt receipts.

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ln Christop her Kitlt!unrlu anl Duttiel ,lsenlotttlo l's. Llt!unda TransDorl o Co. (1975) l.td., civil Anneal No. 3 of 1993, the l" appellant, a small produce buver, rvas proceeding to l-ira to buy grotrttdnuts. He had 200,000/- on hirn for the purposc. Thal tnoney sot lost rvhen he was involved in an accident caused by the negligence of the driver/servant of Uganda Trarrsport Co. (1975) Ltd lle claimed thal arnotlnt as Special Damages. On appeal Manyindo DC.l, held that "that lr'as a foreseeable loss as it was cornmon in this Country for victims of motor accident to be stripped of their cash and other properties by wrong elements especially while the vrctirns are unconscious." This ground also vvould succeed.

Ground 7 a nd 8 were also sufficiently dealt with rvhen considering grounds l, 2, 3, and 5.

The next is ground 9. The appellant's complaint here was that the trial judge was n,rong when he refused to award to the appellant the reliefs sought after riglitly finding that the appellant had proved Iris case against the responclent The trial judge found that tlre appellant had failed to prove his dependency. Mr. Muhirnbura argued that tlrere was evidence that the appellant had lost his sight and was already depended on the

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deceased. He subnritted that on this evrdence, the trial judge ought to havc fbund that the appellant had provcd his dcpendency.

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Mr. Kiapi's reply was that the trial judge was justified in his refusal becausc the appellant rvas not natned in thc plaitrt as a dependanl and had failed to prove his dependency

Sectiou 8 of the Larv Reforni (Miscellaneotts Provisions Act) provides that.-

> "every action brought under the provisions of Section 7 of this Act shall be for the benefit of tlte tnembers of the larnily of the person whose death ltas been so caused, and shall be brought either by and in the name of the executor or administlator of the person deceased or by and in the natne or nalnes of all or any of the rnernbers (if more than one) of the family of the person deceased."

The appellant brought this suit in his nan.re as a tnember of the larnily (son) ofthe deceased. The persons for whose benefit the suit was brought rvere narned in paragraph 5 of the atnended plaint rvhich reads:-

> "That by the time the said deceased person died slre was aged 50 years old and a trader dealing in buying and selling agricultural produce. The aforesaid person left behind her farnily in rvhich five members rvere of school going age and another rvholly dependant ou lier incorne for supporl and that her death deprived thern of the support. The deceased used

to eam Shs. 140,000/- per trtonlh ancl tltrs tnotrey was being tused to suppotl the said dependants

## I)a rticula rs ol'l)ettcndants

- (a) Ibrahirn Nassir aged l5 years. - (b) Mohamed Nassir aged l4 Years. - (c) Sarah Nassir aged l3 Years. - (d) Faizal Nassir aged I I years - (e) Hawa Nassir aged l0 years. - (0 Aziz Babu aged 3 years."

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The appellant was not named as one of the dependants of the deceased He gave evidence as PWI but never stated that he u'as a dependant of the deceased The evidence which Mr. Muhimbura rel'erred to as proving his dependency reads:-

> "l was a driver belbre I lost my sight btrt I am no longer on Job "

In nr1, view that evidence is not enough to prove the appellant's O dependency on the deceased. I atl fortified in this view by the evidence of tlre appellartt in cross-exalninatiott when he said.-

> "Yes my mother used to earn shillings 140,000/: I was in partnership with her but after the sales she used to bring the money and I counted the same."

That piece o1'evidence slrou's that the appellanl \\'as not a dependant ol' the deceased. He was in partnership rvith her in that business of produce sale. For the aforesaid reasons, the trial judge r.vas right in finding that appellant had not proved his dependency. He was accordingly rightly denied damages. This ground would therefore fail.

I now turn to the cross appeal. The first complaint in the cross appeal was that the trial judge was wrong in holding that the respondent was vicariously liable for the accident involving it's motor vehicle No. UXM 127. Mr. Kiapi argued that it was pleaded that the driver of that vehicle at the material time was Ibrahim Mayembe but there was no evidence to prove that he was infact the one driving the vehicle at the material time and that he was the respondent's employee acting in the course of his employment. He submitted that in the absence of such proof, the trial judge should have dismissed the suit.

Mr. Muhimbura conceded that there was neither evidence to prove that Mayembe was the one driving the motor vehicle at the material time nor that he was the employee of the respondent acting in the course of his employment. Counsel submitted however, that the ownership of the motor vehicle was prima facie evidence that it was being driven by its owner or his servant. That would shift the burden to the respondent to rebut the prima facie evidence. It was his view that, as the respondent led no evidence in rebuttal, the trial judge was right in finding the respondent vicariously liable.

The trial judge dealt with the point in this way:-

"However, the fact of ownership of the motor vehicle is prima facie evidence that the motor vehicle at the material time was being driven by the owner or by his servant. See Patel and another Reported Kenya Law report page 8

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**produced in the Eastern African** who caused the accident at the material time (sic) was negligent and the servant of Transocean (U) Ltd. And as such Transocean the defendant vicariously liable for his acts (sic) the accident."

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The case which the learned trial judge relied on is a Kenyan case of J. M. Patel and Another Vs T. K. TANDREE and another, CC 44/1935 (Mombasa). This is a High Court decision. However, In **Banard Vs** Sully (1931) 47 TLR 557, the plaintiff claimed damages for alleged negligence of the defendant' servant or agent in the driving of the defendant' motor-car. The defendant denied that the driver of the motorcar was his servant or agent or was acting within the scope of a servant's or agent's authority. The Country Court Judge held that there was no evidence that the motor-car was being driven by the defendant's servant or agent and withdrew the case from the jury and entered judgment for the defendant.

On appeal to a Divisional Court of the King's Bench, Lord Justice Scrutton who delivered the judgment of the court said:-

> "No doubt, sometimes motor-cars were being driven by persons who were not the owners nor the servants or agents As illustrations of that, there were the of the owners. numerous prosecutions for joy riding, and there were also the cases where chauffeurs drove their employers' motorcars for their own private folly. But, apart from authority, the more usual fact was that a motor-car was driven by the owner or the servant or agent of the owner, and therefore the fact of ownership was some evidence fit to go to the jury that

at the rnaterial tittte tlic rnotor-car was bcing driven bv the owner of it or tr his servant or agent. But this was evidcrrce whrch r.r'as liable to be rebutted bv proof of the actual fact " (Enrphasis added)

They allou,ed the appeal

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The import of that case is that once the ownership of the vehicle which caused the accident is established. that is a prima facie evidettce that the vehicle was at lhe tnaterial tilne being driven by its orvner or by his seryant. Tlris is because motor-vehicles are usually driven by their owners or by the servants or agellts of their owners. 1'he prirna facie evidence is a rebuttable one. It is up to the defendant to rebut it by evidence shou'ing the actual fact - rvlrether the vehicle was being driven by its owner or by a stranger. This is a fact within the knowledge of the owner of the velricle. I respectfully agree with the principle in that case and I adopt it.

ln the instant case, ownership of the vehicle UXM 127, was well established as belonging to the respondent. The respondent led no evidence to rebut the prima facie evidence that the vehicle was being driven by its orvner or his agent. IIr that circurnstance, I think that the trial judge was justified to find tlre respondent vicariously liable. For those reasons this ground ofcross appeal would fail.

Finally, ground 2 cornplained about the principle used by the trial judge in assessing the -eeneral datnages he would have arvarded to the dependants. Mr. Kiapi criticised pa(icularly the nrultiplier of 20 rvhich the trial judge used.

Mr. Muhirnbura rightly in my vierv, conceded that the nrultiplier of ²⁰ rvhich the trial ludge used was wrong artd he wondered how hc arrived at it

The trial judgc dealt rvith the issue in this way:-

"As per the principle in this case it is now generally accepted that the normal working hfe expectancy in Uganda is 50-55 years and it was held that for a professional rnan like art advuc-ate would be likely to work up to the age of60 lears.

o Since the deceased was only aged 50 years she had tlrerelbre 5 years expected working life. But taking rnto account the urr certairrties of life, the appropria(e nulliplier in this case u'ould be 3 years. This would bring the total arvard lo shillings 1,680,000i-. x 3 i.e.4,880,000/. l-he total lost dependency or benefit is calcLrlaled by rnultiplying tlre annual lost benefit by tlre rnultiplier that is 1,680.000/: x 20 - 23,600,000/:."

Tlre trial judgc had in rnind the right principle for dcterrnining the rnultiplier but got confused someuhere . It is rvell established norv by O authorities that a nlultiplier is tlte erPected remaining r.vorking life of the deceased less rrnceI1ainties of lif'e. See Kamoolo Aerated llater Co. Lttl. Vs G. R. Kussam (1961) EA 129; lj. A. T. (U) Ltd. Vs Selestino l|lushaneore, Ciyil Aoneal i\!o. 26 of 1996, Srtprente Court (unreporled). I tlrrnk the fr gure of 3 rvhich the trial judge arrived at is the most realistic one in this case. That nrultiplier would be nrultiplied by the multiplicand to determine the total losl dependency. A rnultiplicand is the annual dependency; lhe aurount rvhich the deceased used for the benefit of his dependants annuallr'.

lrr the rnstant case the evidence revealed that slre used 140,000/: per nronth fbr the benelit of' her dependants. The annual amount of depcndency in this case r,r'ould be 140,000i: x l2 :1,540,000/:. The total lost dependency would be 1,540,000i- x 3 : 4,620,000/: The rrrultiplier of 20 rvlriclr thc trial judge used was wrong and hotv he arrived at it rvas not explained.

Be that as it rnay. the tr.rl;rl lost dependencv u,ould be apporlioned to the dcl.rcndants with the youngest getting the lrighest percentage because he/she would have the longest dependency.

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I would apportion the total lost dependency of4,620,000/: in this case in this way:-

| (a) | Ibrahinr Nassir aged l5 years : | 14% | |-----|------------------------------------|--------| | (b) | Mohaured Nassir aged l4 years: l5% | | | (c) | Sarah Nassir aged 13 years : | 16% | | (d) | Faizal Nassir aged I I years : | 1'7Y, | | (e) | Hau'a Nassir aged l0 years : | l SYo | | (fl | Aziz Babu aged 3 years | :20% | | | | = 100% |

For the aforesaid reasolrs, ground 2 ofthe cross appeal would succeed

Irr the result, I rvould allorv the appeal and the cross appeal in parl

(a) Appeal rvould be allorved to the extent thal:-

(r) the dependents should have been allor,r,ed total lost dependency as general damages.

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- (ii) general darnages of 4,620,0001- to be apportioned as shown above. - (iii) Appellant should have been awarded the Special Darrrages of Shs. 320,000/: clairned. - (tr) The appcal would lrc lost to the ex(errt that -

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- (i) the appellant rvas rightly denicd general damages as a dependant. - o (c) J'he cross appeal rvould succeed to the ertcnt (hat:- - (i) the principle applied by the trial assessing the lost dependency damages) was confused, ,jLrdge in (general - (d) The cross appeal u,ould fail to the extenr thar.- - (i) the trial judge riglrtly held tlrat the respondenr is vicariouslv liable

(e) Costs: - ^Iwould award costs of this appeal at75oh in favour of the appellant and 25"/o in favour of the respondent. As Trvinomujuni, JA and Kitunrba, JA both agree. the appeal and the cross appeal are allorved in parl as stated above and on the lernrs stated hereabove.

Dated at Kampala thrs ')-lt'f clal,of C. L1..-r t999

l6

G. M. OKELLO<br>JUSTICE OF APPEAL.

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# AT KAMPALA

CORAM:

$\hat{H}$

HON. MR. JUSTICE G. M. OKELLO, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

## CIVIL APPEAL NO. 22 OF 1999

# MUHAMED HASSIR KARUGALA ...................................

## **VERSUS**

## TRANSOCEAN (U) LTD. ..................................

(Appeal arising from the decision of the High Court (Mukanza, J.) delivered on<br>30/6/98 in HCCS No.741/90).

JUDGMENT OF TWINOMUJUNI, J. A.

I have had the advantage of reading in draft, the judgment of My Lord, Justice Okello, JA. I agree.

Dated at Kampala this ...... day of ....... Little $... 1999.$

TWINOMUJINI JUSPICE OF APPEAL

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

### HOLDEN AT KAMPALA

HON. MR. JUSTICE G. M. OKELLO, J. A. CORAM: HON. MR. JUSTICE A. TWINOMUJUNI, J. A. HON. LADY JUSTICE C. N. B. KITUMBA, J. A.

CIVIL APPEAL NO. 22 OF 1999

#### **BETWEEN**

MOHAMED HASSIR KALIBALA................. APPELLANT

#### AND

TRANSOCEAN (U) LTD....................................

(Appeal arising from the decision of the High Court (Mukanza, J) delivered on 30/6/98, whereby he dismissed the Plaintiff's suit.)

#### JUDGMENT OF C. N. B. KITUMBA, J. A.

$\epsilon$ .

I have had the benefit of reading the judgment prepared by Okello, J. A. I agree with it and the orders proposed by him.

$\frac{2}{\cdot}$ Dated at Kampala this $\mathcal{M}$ this $\mathcal{M}$ this $\mathcal{M}$ the $\mathcal{M}$ this $\mathcal{M}$ the $\mathcal{M}$ this $\mathcal{M}$ the $\mathcal{M}$ this $\mathcal{M}$ the $\mathcal{M}$ this $\mathcal{M}$ the $\mathcal{M}$ the $\mathcal{M}$ the $\mathcal{M}$ the $\mathcal{M}$ th

Cres Elundo<br>C. N. B. Kitumba Justice of Appeal.