[1994] UGSC 44

For DCT. to consider + Comment

IN THE SUPREME COURT OF UGANDA

## AT MENGO

CORAM: MANYINDO, D. C. J., ODOKI, J. S. C. & PLATT, J. S. C.

### CIVIL APPEAL NO. 27 OF 1993

#### **BETWEEN**

::::::::::::::::::::::::::::: 1ST APPELLANT STEVEN KASOZI :::::::::::::::::::::::::::::::: 2ND APPELLANT JOHN LUBEGA ::::::::::::::::::::::::::::::::: 3RD APPELLANT . A. J. S DRANDA

AND

TRANSPORT SERVICE :::::::::::::::::::: RESPONDENT **PEOPLES**

> (Appeal from a decision of the High Court of Uganda at Kampala (Mr. Justice Mukanza) dated 18th May, 1993)

> > IN

CIVIL CASE NO. 680 OF 1992

# JUDGMENT OF THE COURT.

The appeal in this case, according to the first ground thereof, concerns the question whether a trial Judge, can ignore an agreement of the parties compromising part of the suit, and asking for damages to be assessed on the basis of the compromise. The three Appellants had sued the Peoples' Transport Service for damages arising out of the motor vehicle accident, in which the Appellants were passengers in Peoples' bus registered No. UPM 117 which was involved in an accident with another vehicle. It seems that the collision occurred at a corner on the road between Mubende and Fort Portal, and the three Appellants alleged that they suffered injuries. At the close of the evidence of the 3rd Appellant Dranda, Mr. Mugabi, Counsel for the Appellants at the trial as well as on this appeal, made the following observations to the Court:-

> "In view of the evidence which has been adduced and in respect of the witnesses, we have agreed with my colleague that the Defendant admits liability up to 75 percent and that we tender

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the medical reports as exhibits and the Plaintiff closes his case, and I will call no witnesses and we leave the case to you to assess the quantum of damages." (sic).

Mr. Mugenyi for the Peoples' Transport Service is recorded as saying:-

> "I am agreeable with the submissions of Mr. Mugabi."

The effect of that compromise was that the first five issues leading to a decision on liability had been answered. Only the 6th issue leading to the damages remained. The learned Judge made no observations as to the compromise. He went on to listen to the Counsel on each side submitting on damages. He then adjourned to give judgment. However, to the surprise of Counsel for the Appellants, judgment was given against the Appellants on the grounds that all the evidence recorded could not just be excluded and indeed, the Appellants were trespassers in the Defendant's bus and therefore, not entitled to any compensation or damages. If, on the other hand, the Judge was wrong about that, he made various orders for damages. The second ground of appeal is that they were too low.

Counsel agreed that the appeal should be heard on written submissions. For the Appellants Mr Mugabi takes the point that once the compromise was recorded and accepted, the Court was unable to deal with the question of liability. His duty was to decide the amount of damages for the Respondent. Mr. Mugenyi contended otherwise on the basis of Padamshi vs Hirji (1952) 19 E. A. C. A. 15 where the learned Vice President quoted from a passage of Atkin, L. J. in Barton ... vs ..... Fincham (1921) 2 K. B. (C. A.) 291, on page 299 to the effect $that:-$

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"If the parties before the Court admit that one of the events has happened which gives the Court jurisdiction, and there is no reason to doubt the bona fides of the admission, the Court is under no obligation to make further inquiry as to the question of fact: but apart from such admission the Court cannot give effect to an agreement, whether by way of compromise or otherwise, inconsistent with the provisions of the Act."

Mr. Mugenyi therefrom contended that the question was one of bona fides, and consequently if the trial Judge in this case doubted the bona fides of the compromise he was within his rights to intervene.

As a pure statement of principle we would accept Mr. Mugenyi's submission that a Judge may intervene when a compromise is put forward to him: but that does not entirely describe the whole position. Reference may be made to Cordery on Solicitors 7th Ed. - 1981. p. 89 to the following effect:

#### "4 To Compromise

A Solicitor is authorised to compromise proceedings subject to the following reservations:-

(iii) In any case in which as part of the terms of compromise the Court's intervention to order that something shall or shall not be done is required, the Court may notwithstanding anything which has been said or done by the Counsel or Solicitors of the parties, inquire into the circumstances and withhold or grant its intervention as it may deem just."

The case cited in support NEALE V GORDON LENNOX (1902) A. C. 465 (the other one is not available) concerned the case of Counsel exceeding his authority. The Court did not follow the compromise.

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It follows that the Court may intervene if, for instance, the authority of one of the Advocates is withheld by the Client to enter into the compromise. It may be that the Client himself objects in Court, when he discovers what has happened. It would obviously be invidious for the Court to make any order arising out of that kind of misunderstanding. But there is clearly a limit to the Court's intervention. Suppose the Court did not find that the Court itself, if a party, would have entered into such a compromise, or suppose that the Court thought that another course would have been more beneficial to the parties, would the Court be entitled to intervene? It must be understood that the Court is not here dealing with such cases as are mentioned in Cordery such as minors or wards of Court or beneficiaries under a trust and other disputes arising out of a fiduciary nature when the Court must sanction the compromise. What the Court is here dealing with is a commercial matter, arising out of passengers suing the Transport Company owning the bus in which the passengers were travelling. In such matters, if the Court is satisfied that the liability of the transport Company has been admitted, and that all that the Court is required to do is to assess damages, if any, in general the Court should accept the admission of liability and asses the damages. It is not generally for the Court to impose its idea of what is best for the parties. On the one hand, the early despatch of litigation may be of great benefit to the parties, and on the other hand, the Court may well not be aware of all the circumstances of the parties, which, if known, would incline the Court to accept the compromise. The one matter of which the Court must be sure, is that the parties entered into the agreement of compromise, and that that compromise was what they thought best

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suited themselves. It is therefore wise for the Court, to test the acceptance of the compromise, if that is possible, and there are many authorities relating to the precautions which should be taken, when a consent judgment is entered.

It is therefore, of interest how the learned Judge came to reject the compromise and dismiss the suit. Mr. Mugenyi, in an interesting eliptical phrase, submitted that if the learned Judge doubted the bona fides of the compromise then he has power to make further inquiry and look at the whole case.

The learned Judge's views must now be revealed:-

"After the close of the Plaintiff's case the defence called no evidence to rebut the Plaintiff's allegation. Mr. Mugenyi informed the Court that they had agreed with his colleagues that the Defendant admits liability to the extent of 75% and they tender in evidence the medical reports as exhibits by consent, and that the Court proceeds to assess the quantum of damages. I must point out that so long as Counsel acting for the party in a case and his instructions have not been terminated, he had full control over the conduct of the trial and his apparent authority to compromise all matters connected with the action. (Authority quoted). From what has transpired above I am of the view that though Mr. Mugenyi had admitted liability on behalf of the Defendant to the tune of 75% still I had to go ahead and consider the issues as framed in the light of the evidence on record. The Court could not have ignored all that evidence on record and straight away proceed to consider the quantum of damages. Justice required that I should evaluate the evidence in order to satisfy myself that the claim had been proved on a balance of probabilities."

In general the learned Judge thought that his duty lay in examining the evidence. That is in principle exactly what he ought not to do, after a compromise has been put forward. In practice, that is exactly what he could not do, because he had not recorded all the evidence. If the learned Judge had decided to intervene

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rightly or wrongly, in principle the should have said so at once, and rejected the compromise. The Appellants might then have called further evidence to support their case, and the Respondent could have offered its defence. Having apparently, accepted the compromise, the parties could only have expected that judgment for the Appellants would have been entered and the damages assessed. It was not right to take them by surprise and judge the matter on part of the evidence, without intervening to reject the compromise.

Mr. Mugenyi, however, suggests that the learned Judge doubted the compromise. That is a matter of some amusement. First of all, the doubt, if any, would settle upon the shoulders of Mr. Mugenyi. Did he or did he not have instructions to enter into the compromise? It has not been suggested that by mistake, misunderstanding or coercion, (inter alia) Mr. Mugenyi entered into the compromise, or that he had no instructions to do so. The Appellants have not complained that Mr. Mugabi had no instructions. The learned Judge seems to suggest that he expected Mr. Mugenyi to have control of the proceedings, and to have authority to enter into the compromise. There does not seem to have been any ground on want of authority, or other vitiating circumstances as explained above, to cast doubt on the bona fides of the compromise.

The learned Judge went through such evidence as had been presented to him, and of course had a difficult time. He felt it was "safer" to find that the accident had happened as the Appellants described it, because there had been no defence evidence. Secondly he found again that as there was no defence, that the Plaintiff/Appellants had been involved in the accidents. Then on the fourth issue the learned Judge did not take that view. He held that as the Plaintiffs did not produce their tickets, they were not farepaying passengers $7/$ .....

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and therefore were trespassers. In the Judge's view, it is not uncommon for people "to fluke and travel on some vehicle unnoticed without paying fares." The First Appellant said that he had paid his fare. The other two said that they were passengers. No crossexamination on this point was put to any of the plaintiffs and it was not an issue raised in the written statement of defence. One might have expected the learned Judge to say that since there had been no defence on the point, the Plaintiffs had proved their case.

It is clear that the learned Judge's finding on this point seems unreasonable on the evidence and issues raised. But it is even more unreasonable when the Judge did not hear the full case. This type of doubt can hardly be said to show that the compromise was entered into mala fides. It was really a case of the Judge interposing entirely his own view over the wishes of the parties, on an issue which they had not raised in any way. That is not a ground for doubting the bona fides of the agreement. It was certainly a matter to be put to the parties, if the Judge felt so inclined, at some stage during the evidence, but not after the compromise had been reached, and no further evidence would be called.

There was further trouble on the law. It is not at all clear how the Appellants could be trespassers as they were sitting in obvious places in the bus. Further evidence would have been needed to show how they had entered the bus and whether the driver or his conductor knew they were there. If they had been allowed to enter the bus with or without tickets, a duty of care would have existed, although there might have been a case of volenti non fit injuria. The evidence was not sufficient to deal with these precepts.

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It is clear that the first ground of appeal must succeed. The decree dismissing the action must be set aside and part judgment entered for the Appellants on liability. Damages should be assessed on the basis of 75% liability.

The learned Judge gave his assessment of the damages. We do not observe however, that he reduced his assessment by 75%.

In principle $\mathcal{F}^e$ agree that special damages must be proved. They were not. It is no use saying that people cannot keep receipts and so forth. If one has no documentary evidence, one must call the persons concerned as witnesses or the parties can admit special damages. What Mr. Mugabi thinks is obviously reasonable, is his opinion. Unfortunately, opinions often differ on these matters. The learned Judge was right, in the absence of agreement on these matters between the parties, to exclude special damages.

The medical evidence had its faults as the learned Judge pointed out. We allow his assessments to stand less one quarter, to observe the agreement on 75% liability.

In conclusion, we is ubstitute judgment for the Appellants and general damages assessed at shs 75,000/- for the 1st Appellant, Shs 82,500/- for the 2nd Appellant and Shs. 22,500 for the 3rd Appellant. We -award the costs both here and below to the Appellants.

Dated at Mengo this 2.8. day of Schilder. 1994.<br> Simple chief Partice<br> Simple chief Partice<br> B. J. o de lin Supreme Count H. G. Platt

Justice of the Supreme Court

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