[1997] UGSC 18

# THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM: ODER, J. S. C., TSEKOOKO, J. S. C. AND KAROKORA, J. S. C.)

### CIVIL APPEAL NO. 12 OF 1996

## BETWEEN

| SHEKH KATEREGA<br>1.<br>2. HAJI MUHAMAD KASULE) | | APPELLANTS | |-------------------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------|------------| | | A N D | | | UGANDA ELECTRICITY BOARD | | | | | (Appeal from the decision and Decree<br>of the High Court at Kampala<br>(Berko, J.) dated 21st December 1994<br>in the High Court CIVIL SUIT NO.775<br>of 1992 | |

#### JUDGMENT OF TSEKOOKO, J. S. C.

This appeal is against the judgment of the High Court at Kampala. The appellants brought an action against the respondent claiming for special damages totalling shillings 60,014,900/= because of destruction of property and shop goods by electric fire and general damages. The action was dismissed by Berko, J., on 21st December 1994.

The facts of the case as found by the learned trial judge are simple. The second appellant was the owner of a house situate at Wobulenzi Trading Centre. The house (hereinafter called the suit premises) was given to him and his wife Marium (P. N.8) by his fatherin-law, Suliman Bin Sayyid, upon the marriage of the two. The second appellant is a businessman and had a shop in the same premises where he kept his wares. The first appellant, also a businessman, was a tenant in that house where he kept his trade goods. One Sebagala had a building adjacent to the suit premises. At the relevant time most houses in Wobulenzi including the suit premises did not have electricity supply. The said Sebagala contacted one Lugolobi, an employee of the respondent, and requested Lugolobi to supply him with electricity.

There $\cdots$ /2

There was an electricity pole in between Sebagala's house and the Suit premises. On 12th November 1991 Sebagala and Lugolobi came to Wobulenzi Trading Centre with electric wires. Lugolobi climed the pole and connected the electricity wires to the pole. He then passed the wires over the roof of the Suit premises and connected the wires to Sebagala's house, leaving the wire lying on the corrogated roof of the Suit premises. At that time there was no electricity at Wobulenzi. During the night of 13th November 1991, electricity power came back. The loose wire lying on the roof of the Suit premeises ignited as a result of the contact with the corrgated iron sheets. There was a big explosion followed by fire which engulfed the Suit premises. Many people came to the scene. An employee of the respondent was contacted. He switched off an electricity substation, but the fire continued to burn. Before the fire could be brought under control the Suit promises had been completely burnt down. The goods and properties of the tenants in the Suit premises were also burn down.

Four issues framed for decision by the trial Court were - $(i)$ Whether the defendant's servant was negligent.

$(ii)$ Whether the defendant's servant was on a floric of his own.

- $(iii)$ Whether the plaintiffs had the properties listed on the premises at the time of the incident and what were their values. - $(iv)$ Quantum of damages.

The appellants called nine witnesses (inclusive of themselves) in support of their claims. The respondent elected not to call witnesses.

The learned trial judge answered the first issue in the positive, therefore in favour of the appellants. He answered the second issue in the positive, therefore, against the appellants.

$210$ \*\*\*\*\* /3

The learned judge dismissed the Suit. Hence this appeal. The memorandum of appeal contains two grounds.

trial

The first ground of appeal complains that the learned trial judge erred in law and in fact when he held that Lugolobi, a respondent's servant, was not acting in the course of his employment. This is really the basis of this appeal.

In Paragraphs 8 to 11 and 14 of the plaint, the appellants averred as follows:

> 118 One Sebagala has a building adjacent to the 2nd plaintiff's premises and desired to have electricity supplied to his house.

$9.$ The 2nd plaintiff's house had no electricity and had never been installed with electricity.

10. Sebagala contacted one Lugolobi, an employee of the defendant in the course of his employment and requested him to supply electicity.

11. Lugolobi negligently/carelessly connected electricity wire to the supply pole and passed it on the roof (of corrogated iron sheet) of the 2nd plaintiff's premises and connected it on Sebagala's house and went away leaving the wire lying on the 2nd plaintiff's house.

$12.$ . . . . . . . . . . . . . . . . . . . .

13. ...................................

14. The plaintiffs aver and contend that the fire was caused solely by the negligence of Lugolobi the defendant's servant in the course of his employment and the plaintiff suffered loss and damage".

These $\cdots$ /4

$\overline{3}$

These overments do not indicate the precise nature of the duties of Lugolobi as servant of the respondent. Nor do these allegations in the plaint show that Sebagala had made a request to the respondent for supply of electricity. Apparently Sebagala Contacted Engologi personally. In para 4 of its written statement of defence, the respondent

$L_4$

pleaded -

$114$ Without prejudice to paragraph 3 herein the defendant's servant was carrying out connection of electric city without the authority of the defendant and as such he was acting outside the scope of his employment".

The second issue was phrased as it was because of the pleadings I have just reproduced above. The result was that since the appellants alleged that Lugolobi connected electricity in the course of his work as a servant of the respondent, it was incupent upon the appellants to adduce evidence to prove that Lugolobi was acting within the sope of his employment.

Dr. Byamugisha, Counsel for the appellants referred to the correct applicable principle of the law when he submitted that once it is shown that a master/servant relationship exists, a master is liable unless it is proved that the servant acted outside the sope of his Laudburry And Others (1972) 2 All. employment: Morganc vs. E. R. 606; Muwonge vs. Attorney-General (1967) E. A. 17 and Selle And Another vs. Assoc Motor Boat Co. (1968) E. A. 123. However, Dr. Byamugisha criticised the learned trial judge for holding that the appellants should have called evidence to prove that Lugolobi was within the Scope of his employment<br>acting as a servant of the respondent. Learned Counsel further contended in effect that the second issue required the respondent to

adduce $\cdots$ /5

adduce evidence to prove that Lugolobi was acting on a floric of his own when he connected the electricity supply. Learned Counsel relied for this proposition on the decision of this Court. In Civil Appeal No. 10/92 (Uganda American Insurance Company Ltd. vrs. Phocas Ruganzu) (Unreported). He contended that the respondent enjoys monopoly to supply electricity under Sections. 9 and 18 of the Uganda Electricity Board Act (Cap 135). Counsel implied that this makes the respondent liable for any act or omission of its servants. He further contended that because Lugolobia U. E. B. employee, wore a U. E. B. overall and conhected electricity wires from U. E. B. pole to a U. E. B. metre on Sebagala's house, the respondent had to adduce evidence to show that Lugolobi was acting outside the scope of his employment.

Mr. Kany Emibwa, Counsel for the respondent cited some authorities and principles giving rise to liability because of master/servant relationship and submitted that the fact that Lugolobi connected the electricity wires during broad day time is not evidence that he was on duty. He submitted that Section 18 of U. E. B. Act was inapplicable; that there was no evidence to prove that Lugolobi's duty was to supply electricity on full time basis or that he had U. E. B. wires on full time basis; that the respondent had no evidential burden to discharge. He contended that the Uganda American Insurance Case (supra) was distinguishable. I agree and think that the decision is against the appel-<br>lants. Uganela American in Surance Case involved an employee wh<br>eviding shows that the performance of his duties involved use of his<br>eviding shows tha

which give rise to the liability of an employer arising from the acts or omissions of his or her employee. He summarised the relevant evidence and went on to state, at page 50, as follows:-

"In ..... $/6$

$5$

"In the instant case since it was pleaded that it was Sebagala who contacted Lugolobi to do the connection and that he did the connection in the course of his employment the onus of proving that averment rested on the plaintiff. The plaintiffs could have discharged the onus by suing the Board together with Lugolobi and called Sebagala as a witness to come and show on whose authority Lugolobi came and did the connection for him. This the plaintiffs failed to do.

The (sic) make an employer liable for the act of a person alleged to be his servant the act must be one of the class of acts which the person was authorised or employed to do. If the act is one of that class the employer is liable; though the act is done negligently or in some coses even if it is done with excessive violence. Poland vs John Farr & Sons (Supra) at page $2^{4}2$ . In the instant case we do not know the duties of Lugolobi and whether the supply of electricity to customers is one of the class of work he was employed to do.

In the circumstances there is nothing to show that Lugolobi acted in any way as if he was acting in the course of his employment. If the plaintiffs can only say that Lugolobi might have been acting in the course of his employment and if the Board has no reason to believe or was not told by Lugolobi that he was carrying out the Board's work, one can only say that it is a weak case all round. The presumptions relied on are very weak. The plaintiffs therefore have failed to prove their case on balance of probabilities".

P. W.1, (Rukiya Nakahande) and P. W.2, (Kagina Wycliff) are the witnesses who testified about the possibility of Lugolobi being an employee of U. E. B. But none of them testified that on the fateful day Lugolobi performed the duty on behalf of the respondent.

P. W.1 is the mife of the first appellant. In her evidence-inchief, she testifed in the relevant part (page 10) that -

"Lugolobi $\cdots$ /7

"Lugolobi was an employee of U. E. B. The time was $9.00 a.m.$ They started unfolding the wires in Sebagala's home. Lugolobi climbed the electric pole near the house that got burnt which was between the pole and Sebagala's building. Lugolobi fixed the electric wire. He passed\_(sic) the wire over 2nd plaintiff's house. One Naswa asked for a knife and I gave it to him. After he had it marked what he wanted to do he returned it to me. The wire was connected to Sebegala's house.

...................................

...................................

Lugolobi was an employee of defendant. I did not know where he stayed. I used to see him in defendant's vehicle (and my husband had house hold properties in the house. ............".

During cross-examination, P. W.1 stated this (at page 11) which is relevant -

> "I know Waswa. I do not know if he is an electrical technician. I do not know if Waswa had instructions to connect electricity to the bullding where I lived ............".

P. W.2 (Kagina Wycliff) a Police Constable, testifying as any witness, stated (at page 12) that:

> "............. Whilst going to the barracks I saw U. E. B. staff climbing a pole near the house. The one climbing the pole was in U. E. B. overrall. I did not take notice of appearance. At 11.00 p.m. whilst at house power came .........".

The first appellant as P. W.7 testified in examination-in-chief as follows (at page 21) in so far as his evidence is relevant to this ground of appeal -

"The $\circ$ $\circ$ $\circ$ $\circ$ /

$\sim$

"The following morning the defendant came to the scene. They climbed the pole where the fire came from and disconnected the wires and took them away. The Police ordered U. E. B. staff for a report. I went to the Police who arrested the staff of U. E. B. One Lugolobi was arrested Maso (sit) was also arrested. I am not sure about Waswa. One Fred was arrested. He was the one who removed the wires. Those arrested were sent to Luwero Police. They gave statements and were released on Police bond. They were not presented (sic)".

As far as I am able to gather from the record, the above extracts are the only pieces of evidence that indicate that Lugolobi was an employee of the respondent and that he connected the power supply cables at the material time. Clearly from that evidence there is nothing to show that Lugolobi was employed by the respondent as an electric technician and that on the fateful day he acted as such on the instructions of the respondent. In these circumstances I think that the learned judge was right in holding that he had no evidence before him to hold that Lugolobi was acting within the scope of his employment when he allegedly connected Sebagala's house to the U. E. B. pole.

The facts in Muwonge's case in brief is as follows:

"On 10th November 1964 there was a riot at Nakulabye where the police had gone to arrest a suspect. More Policemen were sent to the scene to quell the riot. In the course of the riot the plaintiff was returning to his house after drawing water at a well when he heard firing and was slightly injured by a bullet. At the same time rioters were throwing stones at the police. He then ran into his house, which was nearby the site of the mot, told his father about it, his father at that time being in the house. His father then went to another room to get medicine to dress the wound and enroute there, while inside the house, a policeman was seen while gutside the house to fire into the house and the shot killed Matovu. The trial judge held that when he shot Matovu,

the $...$ /9 the Policeman was not executing his duty and therefore, the Attorney General was not liable. The East African Court of Appeal reversed the decision. At page 18/<br>Newbold, the President of Court stated the law to be

> "The test of a master's liability for the acts of his servant does not depend upon whether or not the servant honestly believes that he is executing his master's orders. If that were so the the master would never be liable for the criminal act of the servant, at any pate rate when the criminal act is toward benefitting the serWant himself. .............. All that I can say, as I understand the law, is that even if he is acting deliberately wantonly negligently or criminally, even if he is acting for his own benefit, neverthe less if what he did was merely a manner of carrying out what he was<br>employed to carry out then his acts are acts for which his master is

liable". (Underlining added)<br>In my office with respect thes is a correct statement of the<br>pair with respect the applicable.<br>Dr. Byamugisha argued the point that the staff of U. E. B. are pro-

tected from legal proceedings and therefore the appellants could not have sued Lugolobi or Lugolobi jointly with U. E. B. as suggested by the learned trial judge. Dr. Byamugisha's argument is attractive but this point is with respect no longer relevant. In my view, the issue which the judge answered, was whether there was sufficient evidence proving that Lugolobi acted within the scope of his employment when he carried out the electrical connections. In my opinion, the learned judge was right in concluding that there was insufficient evidence to establish this. Upon reviewing the entire evidence I am satified that the learned trial judge arrived at the right conclusion. There was not any evidence proving

(a) that Lugolobi was an electrician (Technician)!

(b) that he was employed as such by the respondent, and

(c) that at the material time (at $11.00$ a.m. on 13th November 1993) he had instrutions from the respondent to act to connect electricity to Sebagala's house. I think that unless these three elements were

satisfasorily proved, the immunity of Lugolobi is irrelevant. In the result I think that ground one must fail. In fact that disposes $% \mathcal{L}_{\mathcal{A}}$ of this appeal.

I would accordingly dismiss this appeal with costs to the respondent.

Delivered at Mengo this ........ day of An pust. 1997. $W - 1$ ekooko Justice of the Supreme Court. Asmellant pings $\alpha$ yenin $\n *ess*\n$ Ing $\sim$

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

# AT MENGO

(CORAM: ODER, J. S. C., TSEKOOKO, J. S. C., KAROKORA, J. S. C.) CIVIL APPEAL NO 12 OF 1996

#### **BETWEEN**

| SHEIK KATEREGGA | | |---------------------------|--------------------------------------| | | <pre>2. HAJI MUHAMAD KALULE ) </pre> | | | AND | | <b>HGANDA RIECTRICITV</b> | |

JGANDA ELECIKICII)

**BOARD**

................. RESPONDENT

(Appeal from the decision of the High Court of Uganda at Kampala by the (Hon. Mr. Justice J. P. Berko) dated 21st December, 1994 in Civil Suit No. 775 of 1992)

### JUDGMENT OF KAROKORA, J. S. C.

I have had the benefit of reading in draft the judgment prepared by Tsekooko J. S. C., and do agree with it and the order he proposed.

However, I shall add a few comments. What must be observed is that there was no evidence in the pleading\$ to show that Sebagala had made a request to the UEB, the respondent, for power supply. Further, there was no evidence led to prove that the respondent sent Lugolobi to connect electricity to Sebagala and that therefore, whatever he did was done in course of his employment as a servant of the respondent.

In paragraph 10, 11 and 14 of the plaint the appellant had averred as follows:-

- 10 "Sebagala contacted one Lugolobi, an employee of the defendant in the course of his employment and requested him to supply electricity. - $\overline{11}$ "Lugolobi negligently/carelessly connected

electricity wire to the supply pole and passed it on the roof of corrugated iron premises and connected it on Sebagala's house and went away leaving the wire lying on the 2nd Plaintiffs'

house.

- 12 \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\* 13 . . . . . . . . . . . . . . . . . . . - $14$ The plaintiffs aver and contend that the fire was caused solely by the negligence of Lugolobi the defendants servant in the course of his employment and the plaintiffs suffered loss and damage."

At the trial, the Judge held and rightly so, in my view, that from the evidence, whoever connected the wires from where the fire started which burnt down the house was negligent. As there was evidence that the wiring was done by Lugolobi the learned Judge held and correctly in my view, that Lugolobi who did wiring, was negligent.

On the issue of whether or not Lugolobi, defendant's servant was not acting in the course of his employment the learned trial Judge held and rightly so, in my view:-

"The pieces of evidence from which the Plaintiffs invited the Court to infer that Lugolobi was in the course of his employment were:-

- (i) that he came in broad day light to make the connection; - (ii) that he was wearing the overall of the defendant, and (iii) that after the fire the employee of the defendant came to the scene and removed the wires and took them away.

With due respect to the learned Counsel<br>for the plaintiffs, none of the above

pieces of evidence is a conclusive proof that Lugolobi did the connection during the course of his employment. The mere fact that he did the connection during the broad day light is neither here nor there. He could have done the connection in broad day light without the knowledge of his employers. He could have been in the over all provided by his employers, yet could have been doing something not for the benefit of his employer and without his employers authority. It was pleaded in paragraph 10 of the plaint that Sebagala contacted one Lugolobi an employee of the defendant in the course of his employment and requested him to supply electricity. In <u>Uganda American Insurance</u> Co Ltd v Phocas Rugaza Civil Appeal No 10/1990 (unreported). The defendant denied that their employee, Lubega, who the defendant gave a vehicle for the purpose of his work, was not driving the vehicle at the material time when he caused an accident, within the course of his employment. The Supreme Court held that since the matter was raised in the pleading it befell the respondent (the injured person) to establish on balance of probabilities that Lubega was acting in the course of his employment. That, they did not do. The Court said that Lubega might well have been on a floric of his own. The decision is an illustration of the rule that he who affirms must prove, which lies at the root of the law of evidence."

$\cdot\,$

The appellant having raised in the pleadings para 10 of the plaint that Sebagala contacted one Lugolobi an employment of the defendant in the course of his employment and requested him to supply electricity, and the respondent having denied in paragraph 4 of their WSD as follows:-

> "Without prejudice to paragraphs herein, the out defendant's servant was carrying connection of electricity without the authority of the defendant and as such he was acting outside the scope of his employment.

It was incumbent upon the appellant to prove that Lugolobi was acting within the scope of his employment, when he purported to instal electricity in Sebagala's house.

The learned trial Judge then went on to state in his

judgment and rightly so, in my view as follows:-

"In the instant case since it was pleaded that it was Sebagala who contacted Lugolobi to do the connection and that he did the convection in the convection in the course of his employment, the onus of proving that averment rested on the Plaintiffs. The Plaintiffs could have discharged the onus by suing the Board together with Lugolobi and called Sebagala as a witness to come and show on whose authority Lugolobi came and did the convection for him. This the plaintiffs failed to do.

To make an employer liable for the act of a person alleged to be his servant the act must be one of the class of acts which the person was authorised or employed to do. Of the act is one of that class the employer is liable; though the act is done negligently<br>or in some cases even if it is done with excess¦√we violence. Poland v Johnfarr & sons [1927] IKB 236 at page 242. In the instant case we do not know the duties of Lugolobi and whether the supply of electricity to customers is one of the class of work he was employed to do. In the circumstances there is nothing to show that Lugolobi acted in any way as if he was acting in the course of his employment. If the Plaintiffs can only say that Lugolobi might have been acting in the course of his employment and if the Board has no reason to believe or was not told by Lugolobi that he was carrying out the Board's work, one can only say that it is a weak case all round. The presumption relied on are very weak. The Plaintiffs therefore have failed to prove their case on balance of probabilities."

It must be observed that any person who desires to have electricity in his house must apply to the Board under Sections $17(2)(3)$ and $18(1)$ of the Electricity Act and must pay all necessary fees for connection and poles if they are required after the premises have been examined and found fit to be supplied with electricity. After that, then the premises must be wired and other fittings must be done at the expense of the prospective consumer and after all this has been done and $\alpha$ approved by qualified and licensed electrical technician that the $\mathrel{\:\:\swarrow}$

$\overline{A}$

wiring and other fittings in the premises conform to the required standard, then the UEB would send in its employees with the Meter and other required materials to do the connection of the power to the premises. It is not every servant of respondent that is seen in respondent's vehicle, wearing respondent's over all that has got power, under the Act, to supply and connect electricity to any one that wants electricity. There are preliminary steps where the respondent is involved directly with the prospective consumer before the servant of respondent would be involved in the con $\eta$ ection of power to the premises. It would appear that what Sebagala was trying to do was to get illegal connection of power to his house without records in the respondent's office, because there was no evidence that he had already applied for power supply, done wiring and other fittings, paid all necessary fees and that what remained was connection from the pole where there was live power.

Clearly, without going any further, there was no evidence before the learned Judge which would show that Lugolobi was employed by the respondent as a technician and that he had been instructed by the respondent to do the connection of electricity to Sebagala's residence. I think in those circumstances, the learned Judge was quite correct in holding that he had no evidence before him to hold that Lugolobi was acting within the scope of his employment when he allegedly connected Sebagala's house to respondent's pole, resulting in the catastrophe that befell the appellants' premises.

I would without going any further dismiss this appeal with costs to respondent.

Delivered at Mengo this ........ day of August 1997.

A. N. KAROKORA

JUSTICE OF THE SUPREME COURT

#### THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF **UGANDA**

#### AT MENGO

(CORAM: ODER, JSC, TSEKOOKO, JSC, & KAROKORA, JSC)

CIVIL APPEAL NO. 12 OF 1996

#### **BETWEEN**

$!$ . SHEIK KATEREGA )::::::::::::::::::::: APPELLANTS. HAJI MUHAMAD KASULE )

AND

<table>

UGANDA ELECTRICITY BOARD ::::::::::::::::::::::::::::::: RESPONDENT

(Appeal from the Judgment of the High Court of Uganda at Kampala (Berko, J.) dated 21.12.1994 in H. C. C. S. No 775 of 1992)

### JUDGMENT OF ODER, JSC

I have had the benefit of reaching in draft the judgment of Tsekooko, JSC I agree with him that the appeal should be dismissed.

Since Karokora, JSC, also agrees the appeal is dismissed with costs to the respondent.

Dated at Mengo this $\mathbb{R}$ .......day of August, 1997.

A. H. O. ODER JUSTICE OF THE SUPREME COURT