[2012] UGHC 440


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

### HCT-00-CV-CS-0791 OF 1996

## JAMES KATEMBA PLAINTIFF

VERUS

#### NALUDDUGAVU CONSTRUCTION INDUSTRY LTD DEFENDANT

#### BEFORE: HON. LADY JUSTICE ELIZABETH MUSOKE

#### JUDGMENT

The plaintiff brought this suit against the defendant claiming general and special damages arising out of a breach of contract and or in negligence.

At the scheduling conference held before Sebutinde J, the parties agreed to the following facts:

The description of the parties as obtained in paragraphs ¹ and ² is 1) ^I not in dispute.


*I*

- 2) The plaintiff was the equitable owner of motor vehicle Toyota Carina No. UPM 970. This means that he bought the vehicle but he had not yet transferred it in his names. - 3) As at the 6th April 1996, the Defendant Company had a motor garage at Masaka, by the same name. - 4) The plaintiff's vehicle UPM 970 was brought to the Defendant's garage on 6/4/96. - 5) The wall of the Defendant's garage collapsed, falling on the plaintiff's car which happened to be parked inside the enclosure.

*(O* The following issues were agreed:

- **1)** Whether the plaintiff's vehicle was lawfully at the defendant's premises at the material time. - **2)** Whether the Defendant was liable in negligence, for the damage caused to the plaintiff's vehicle. - **... 3) ^~ /-S'** Remedies available if any.

The brief facts of giving rise to this suit are that on the 6/4/1996, the plaintiff, who was the equitable owner of motor vehicle Registration No. UPM 970 Toyota Carina, had his said vehicle delivered for repair at the defendant's garage known as Naluddugavu Construction Industry Ltd; at Masaka. A month later, and while the vehicle was still at the garage, the wall enclosing the garage collapsed and crushed the plaintiff's vehicle damaging it beyond economic repair. The plaintiff is holding the defendant liable in breach of contract for failing to repair the plaintiffs vehicle and handing it over back to him in good condition; and alternatively he holds him liable in negligence.

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In his written statement of defence the defendant, while admitting that he owned the garage in question, denied liability in toto. He averred that if the there as the defendant was not aware of its presence. plaintiff's vehicle was at the defendant's garage, then it was not lawfully **- \_** *LV*

The defendant further denied the existence of any agreement/contract between the two to repair the plaintiff's vehicle or have it kept at the defendant's premises; hence the defendant could not be liable for any damage that occurred to the vehicle.

The defendant also denied ever holding negotiations with the plaintiff to compensate him as alleged by the plaintiff. They did not owe any duty of care to the plaintiff's vehicle which was at the defendant's premises

**I**

unlawfully, without consent or authority of the defendant. Alternatively there was no negligence on defendant's part as the wall collapsed as a result of natural causes which the defendant could not reasonably foresee.

At the close of the case for the defendant, on 16/2/2011, the parties were later, none of the parties has ever filed any written submissions. Not even the defendant's Counsel who had given an ultimatum to the plaintiff to file has to be an end to this matter. ^I will, therefore, write the judgment and do the best ^I can without submissions. by 2nd May failing which the defendant would file (See their letter on file dated 26/04/2011) None were filed. The court cannot wait forever as there *[0* respectively, with the rejoinder to be filed on 22/4/2011. To date, a year directed to file written submissions on 15/3/2011, and 15/4/2011, —

In order to prove his case to the balance of probabilities, the plaintiff called evidence of 4 witnesses as follows:

1) PW1, the plaintiff who testified that he had bought the motor vehicle in question in 1995, and in April 1996 it developed faults requiring mechanical attention, by way of panel beating and spray and other

repairs. Plaintiff asked a friend, Sembambo (PW2) to take the vehicle to the defendant's garage, where both of them had repaired their vehicles before. On 15/4/1996 the plaintiff, passed by the garage and paid Shs. 100,000= to one mechanic called Sempijja who was incharge of the vehicle who acknowledged receipt and signed for the money in the plaintiffs diary. The money was meant for purchasing materials. Again on 6/5/1996, the plaintiff paid Shs. 50,000= to one Kayira Sentamu, another mechanic in the defendant's garage towards purchase of more materials. Sempijja was not at the garage scene and reported to Masaka Police Station. He tried to trace Dr. Kabanda, the defendant's manager in vain, so he towed the vehicle to the Inspector of Vehicles, Assistant Superintendent of Police, **zs** Masaka Police Station, who examined it and gave a report of "total wanted to negotiate with him. The plaintiff proposed Shs. 5,000,000=. Bro. Kabanda, DW1 went to consult his supervisors, but later denied liability. The plaintiff said he used to hire out his vehicle - at the time. This was also acknowledged in the plaintiffs diary. On -— *(/J* 7/5/1996, the plaintiff's friend, Semambo told him that the defendant's wall had collapsed and damaged his motor vehicle. He visited the loss". Some days later, Br. Kabanda approached the plaintiff and

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to one Matovu at Shs. 50,000= per day and would earn from it Shs. 1.2 million per month. Matovu used it from 9/1/96 to 30/3/96. No one protested his vehicle's stay at the garage for ¹ month.

On cross-examination, the plaintiff said he did not see Bro. Kabanda at the garage the times he went there, and neither did Sempijja issue any official receipt. He did not know if the motor vehicle was entered in the register as it was not him who took it there. Sempijja and Kayira had worked on his vehicle before, so he could not doubt their identity as mechanics for the was enclosed with a wall and had a locked gate with guards at the gate. Even the first time he took the motor vehicle to that garage there was some mechanic who received it. garage. Sempijja negotiated the price of repair at Shs. 250,000= on behalf of his employers, since the manager was not there at the time. The garage -— *I*

AGK (ASP) which stated that the vehicle had been crushed by an overload object, possibly concrete shed, which damaged the entire structure PW2 was Wilson Kitonyi (ASP) Inspector of Vehicles (IOV) stationed at Naguru, who testified on the IOV report prepared by retired IOV, Boma —

including all systems, chassis and frame beyond repair, i.e. total loss, meaning beyond economic repair.

PW3 was Vincent Semambo, D/IP who stated that his boss, PW1 asked him on 5/4/1996, to take his vehicle to the defendant's garage for repair Sempijja informed PW3 that the plaintiff's vehicle had been crushed by a wall. He informed PW1. and to hand it to one Sempijja the next day. After a month, the same ——

PW3 further testified that he used to take his own vehicle to the same had parked away from the wall but he found Sempijja had moved the vehicle near the wall. He knew Sempijja as a panel beater employed at the defendant's garage. There was no notice pinned up to guide customers on opened. A mechanic would walk up to the car and assess the repairs required; inform you of amount to pay. You would then pay the same garage for repairs, and he had noted that the rear wall of the garage was too old and was also enclosed with mabaati secured with eucalyptus. He —- *[ Q)* any procedure of receiving vehicles. The procedure he saw when he went there was that a customer would explain to the gateman the purpose of bringing cars, a vehicle to the garage after which the gate would be

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mechanic who would have done the repair after which and you drive away. No paper or document was given as proof that your motor vehicle was in the defendant's custody. That was the same procedure wherever he took his own car; no receipts were issued. In cross-examination PW3 stated he had taken his car UXH ¹⁴³ Corona twice before that occasion and he vehicle to Sempijja and was not given any document as proof that he had deposited the vehicle at the garage. would pay the person who had repaired. He had handed over the suit

PW4, Michael Kayira, was a dealer in new and used Japanese vehicles Smillion after registration. It was the cost of a used vehicle. and owned ^a company known as M. K. Motors. He said that the cost of the —*' [^O* same vehicle like the plaintiff, as of 15/08/2000 when he testified, was Shs.

The plaintiff had intended to call Sempijja and Kayira but they were not to working before. be found at the garage of the defendant where they had been finding them **- Zs**

The defendant produced evidence of one witness, Brother Anicetus Kabanda, the Manager of the defendant's garage at the material time. He

customer came to the workshop with a vehicle, he would introduce himself to the foreman or the Manager if foreman was busy. The Secretary would call either. Either would then inspect the work to be done and the foreman —- (Manager) would discuss the cost with the customer. If the customer accepted, he would be required to pay a minimum deposit of not less than half the total agreed cost; if he paid, a receipt would be issued to him, but if he was not able to pay, the work would not start till he paid. After issuing the receipt, that vehicle would be recorded in a register called Daily Motor —-- Records Register (Exhibit DW1); where they would record the date of receipt of vehicle, registration Number, job to be done, mechanic or attendant to handle job and date when the client paid for the job. DW1 never saw the plaintiff's vehicle in the defendant's garage and the any arrangements between the two, i.e. plaintiff and Sempijja were private arrangements. There had been heavy rain and thunderstorm the night before the wall collapsed causing the wall's collapse. The wall was strong and was not expected to collapse. The wall had damaged only the defendant's records did not indicate the vehicle was received for repair. He \_\_ also stated that Sempijja was not the defendant's employee, and hence, workshop for motor vehicles among other activities. He stated that when a used to manage the defendant's Construction Company, which had a visiting the plaintiff when the vehicle got damaged, or discussing any compensation with him. ever employing Sempijja as a mechanic in his garage; he also denied ever plaintiff's vehicle and no others. During cross-examination, DW1 denied

Based on the pleadings and the evidence on record, it is not disputed that the plaintiff's vehicle got extensively damaged when the wall of the defendant's garage collapsed. DW1, the defendant's Manager at the time, however denied knowledge that the vehicle was there, and stated that it was not registered. On the other hand the plaintiff and DW2 both insist that the vehicle was handed over to Sempijja, ^a mechanic at the defendant'^s **/p** garage. PW1 and PW2 had on previous occasions taken their vehicles to the same garage and the same Sempijja had worked on them without issuing them with receipts or any other document, or entering them in any demenour. All ^I can state from the evidence on record is that PW1 and Pw2's testimonies were consistent regarding the procedure employed at the defendant's garage wherever they took their vehicles for repair, that is to say, that no receipts were issued, Sempijja was always there working as register. Without having the benefit of seeing the witnesses testify, since ^I took over this file at an advanced stage, ^I cannot determine their -—•

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money and also paid Sentamu, another mechanic at the garage some money for spares. It is the same Sempijja who called PW2 to inform him of - the damage to the plaintiff's vehicle by a collapsed wall. a mechanic, and no registration was made. Further, that Sempijja was handed the vehicle by PW2 as instructed by PW1. ^I believe the evidence of PW1 that he had found Sempijja at the garage and paid him some

From the evidence, and although DW1 states that Sempijja was never the defendant's employee, it is clear that Sempijja used to carry out mechanical knowledge of the Manager. repairs at the defendant's workshop. The question one would ask is how he came to access the garage and even bring in vehicles without the *['Q*

From the evidence available on record, the court believes that Sempijja used to carry out repair works at the defendant's garage and that vehicles through whatever arrangements the two had between them. It is on record that the plaintiffs had intended to call Sempijja to give evidence in support to be repaired by Sempijja had unlimited access to the garage, albeit without being registered. The inevitable conclusion is that the defendant —-/^ used to allow Sempijja to do repair works at the defendant's garage


to support his case especially regarding the procedures of access to the garage, or the status of Sempijja as at the garage. of their case but they failed to trace him. The defendant did not try to bring Sempijja or any other mechanic, worker, or the Secretary of the defendant

^I tend to believe the plaintiff'^s evidence that Sempijja carried out repair —lST works at the defendant's garage. It must have been with the consent of the defendant, otherwise how could a vehicle be parked at someone's garage for a month without any queries as to what it was there for. Was DW1 really in charge of the garage?

PW1 also stated that the customers would pay in advance, but ^a look at —*'/O* Exhibit D1, the register, shows otherwise. In almost all the cases, payment was made days or weeks after the vehicle was brought. Neither did DW1 deny that PWland PW2 had ever taken their vehicles for repairs prior to the incident in issue.

defendant must have allowed non-employees to bring in private work and access the garage facilities. That is most likely how the plaintiffs vehicle As stated earlier, if it is true that Sempijja was not an employee, then the —


found itself in the defendant's garage. If, therefore, the defendant allowed private work to be carried out at the defendant's garage, then the defendant owed a duty of care to see that the vehicles brought under such which has not been shown. arrangements were safe, unless there was an agreement to the contrary, **-**

^I find that the plaintiff's vehicle was lawfully at the defendant's premises at the material time. The first issue is therefore answered in the affirmative.

On the second issue as to whether the defendant was liable in negligence for the damage caused to the plaintiffs vehicle, ^I have already found that the plaintiff's vehicle was not damaged. According to the plaintiff and his witness, PW2, the wall which collapsed was very old and was held up by DW1 stated the wall was strong but because there was a evidence that the wall in question was made up of weak materials, and was old. The defendant did not produce any other witness to support him on the plaintiff'^s vehicle was at the defendant'^s garage with his knowledge and -—*[(J* implied consent. The defendant therefore owed a duty of care to see that eucalyptus. storm, it fell. But he again admitted that no other buildings were affected or damaged by the rain storm. This can only go to support the plaintiff's

inclined to believe the plaintiffs side of the evidence, and find that the wall collapsed due to the negligence of the defendant who did not care to keep it strong. The defendant was, therefore, liable in negligence for the damage caused to the plaintiff'^s vehicle. Issue No. ² is also answered in - the affirmative. the issue of the strength of the wall and the cause of its collapse. ^I am

On remedies available to the parties, the plaintiff claimed for special damages as follows:

- 1) Current value of the motor vehicle. - proceedings) till the date of judgment. 2) Loss of income from the vehicle at Shs. 50,000= per day from the date of the loss of the vehicle (amendment allowed in course of - 3) General damages. - 4) Costs of the suit.

PW4 testified in ²⁰⁰⁰ that the value of the suit vehicle "CIF Kampala" was —*/* Shs. 6million, after registration. ^I have not been assisted to know how to value of the vehicle before it was damaged, since the plaintiff testified that come to the current value. ^I however will take Shs. 5million as the base

Shs. 5.2 million (Exhibit P.2B). The vehicle was first registered in Uganda Uganda for about 4% years. ^I will take all that into account, and take Shs. ---- < 5,000,000= (Five million only) as the base value at the time of the accident. ^I will award that to the plaintiff, but to get an approximate current value, ^I will add a 10% interest per annum to the said Shs. Smillion from the date the car was destroyed till payment in full. he had been willing to take that much as compensation from the defendant. The amount is not even far from the amount he purchased it for, which is on 8/11/1991 (Exhibit P1 Log Book). It had, therefore, been driven in

On the loss of earnings, the plaintiff testified that he used to get Shs. — / *Q* 50,000= per day and claims this amount from the date of damage to the vehicle till judgment. The car was stated to be a 1982 model (Exhibit P.1). It was destroyed in 1996. ^I have not been assisted to know how long such years. a vehicle is likely to stay on the road but ^I will take it that with careful driving it could have lasted another 4 years, thus giving it a total lifetime of 18 —

^I believe that the amount of Shs. 50,000= earnings per day was a bit on the higher^ideJorJiSe^Further, one has to take into account a number of

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imponderables; the car could have gotten an accident under different circumstances and not been hired up to its full lifetime; there are periods when it could be in the garage for long periods, like it had been for a month in the defendant's garage, and there is no knowing how much longer it was going to be there; and many other unforeseeable circumstances that could affect the earnings.

Taking all the above into consideration, ^I will award Shs. 5,000,000= (Five million only) for loss of earnings.

items. ^I will not address myself to general damages since the plaintiffs Counsel did not bother to file any submissions to throw more light on this and other —

In conclusion, the plaintiff's suit against the defendant succeeds with costs. The plaintiff is awarded special damages as follows:

- 1) The value of the suit motor vehicle estimated at Shs. 5,000,000= (Five million only). **A** - 2) Loss of earnings at Shs. 5,000,000= (Five million only).

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3) Interest on (1) above at 10% per annum from the date the plaintiff's vehicle was damaged till payment in full.

4) Costs of the suit. $\frac{1}{2}$

it is so ordered.

$\left\{ \cdot \right\}$

**Elizabeth Musoke**

JUDGE

30/04/2012