[1997] UGSC 13

IN THE SUPRE E COURT OF UGANDA MANYIN'O, DCJ, ODER, JSC., PLATT, JSC) (CORAM: CIVIL APPEAL NC. 16/92

BETWEEN

BARNABAS NTIMBA $\cdots\cdots\cdots$ APPELLANT A N D

UGANDA ELECTRICITY BOARD ::::::: RESPONDENT $\geq$ CONK **JUDGEMENT** ਼ਾਨ

The Appellant Barnabas Ntimba appeals against an award od damages in serious injury, which he sustained while working for the Uganda Electricity Board. The Board was found liable and there is no appeal upon that finding. The learned Judge awarded shs.9,000,000/general damages for paid and suffering and loss of amenities, and shs.11,856,000/- for future earnings.

At the hearing of the appeal, the award of shs.11,856,000/- was not objected to.

The sole argument conc rns the award of shs. 9,000,000/-.

In my opinion that sum is inordinately low. ${\tt The}$ Judge observed as follows:-

> "The evidence of PWI and 3 medical doctors coupled with any observation of the plaintiff<br>is more or less like a baby who needs constant care and attention. He c n hardly do anything for himself. Looking at him sends a chill down one's spine. He is confirmed to the wheel chair for the rest of his life.

The learned Judge then detailed the injuries:-

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"He lost the sight of his right e.e. right leg abot knee amputated, weakness of right hand (cannot write) extensive burn on the scalp and face involving the bene of the parietal region, superficial burn of the right shoulder. The burnt scalo was prafted with fresh skin removed from his left thich. Both doctors assessed his disability of 80%".

"In respect of general damages the age of the plaintiff is given as 37, the medical evidence is that his life expects cy is not bright and he will continue to receive regular medical treatment. "e is in the prime of his life and yet he has lost what makes life worth living for, he has only one child ant is more like a burden to his wife who also to make necessary sacr fice to keep him slive. He is only able to bleep and eat, he is therefore totally dependent on wife."

That is not an unfair ascessment, but yet it leaves out a few particulars from the appellant's evidence. - Re lost the vision in the right eye, but he also can only see dimly with the left. He uses the toilet with the help of someone. He cannot dress or bathe himmelf. His wife sees to his needs and does no other work other than that. His friends have deserted him.

Doctor Lawrence Ekerao $(P``3)$ explained the medical symptoms and treatment and concluded that:

> "he must now depend on someone to look after him for the rest of his life. He is now on a wheel chair and cannot move without it. The report of Dr. Mutambi noted that

the appellant used a wheel chair and walking sticks.

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The problems seems to be how to compensate a man who will need, help for the rest of his life, who has,been very badly injured and has no help other than that of his wfie. Budging from other similar awards, it would seem to me that the award of shs.9,000,000/ ought to be increased to one of shs.'18,000,000/-. If that is wisely invested, the income would go a long/way in solving the problem.

I would therefore allow the appeal. I would then enter judgement for shs.29,856,000/-. The appellant with the costs of the appeal. vary the judgement of the trial judge by awarding the appellant shs.18,000,000/- as general damages, and

DATED AT MENGO THIS DAY OF 1993.

H. G. PLATT JUSTICE OF THE SUPREME COURT I would therefore find that the matter ought to be taken on doubt based on equitable consideration^' that prima facie the Bank ought not to be allowed to take advantage of its own wrongdoing, should be applied\* appeal, and that this principle, no

Accordingly on the two considerations set out above, and bearing in mind that security should be ordered sparingly, in the exercise of my discretion, I decline to order the appellant ish further security either under rule 104 of the Supreme Court Rules or Section 4o4 of the Companies Act, in past costs and costs of the appeal\*

It follows that I dismiss the application with costs to the appellant Company\*

Right of review by the Full Bench explained (Rule 5\*0 • Delivered this 2Jrd day of November, 199^\*

H. G. PLATT,

JUSTICE OF THS SUPREME COURT.

manipulated by natural persons. the power to order Companies to furnish security in an appeal, should not be undul^y fettered. part costs, is one which should be sparingly used (Premchand's Case above.) I gather that the principle is that the appeal process However,' case particularly applies to matters at first instance, ef not to appeals# The decisions of the East African Court of appeal show that

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Turning then to the fact^. I should first inquire whether was delay# 0 > the applicant had made out a case, and if so whether there

It appears to have been agreed that the Bank as mortgagee. had sold all the appellant's property, and had purchased that Mr. Matovu stated property itself, at an alleged low price. factj of the sale in his letter dated 26th October, 1994

> "Also note that your client sold off all property so that there is nothing to attach#"

Mr. Blue'^s affidavit dated 4th November, ¹⁹⁹⁴ sets out the *)* picture more fully at paragraph 8

> "That the Plaintiff/Respondent Company went into Receivership way back on 15th,October, 19&9> and by 13th,August, 1974, when the receiver and Manager discharged himself all the Company's assets were sold though it still remained indebted, currently the Company has no property known to the Applicant/ Defendant, therefore likely to incur more costs which may not be recovered from the respondent/ plaintiff."

is not indicated by either side. In these circumstances, it seems to me that execution should have been taken to ascertain the present position# Execution was not an expensive process and would not have added greatly to the taxed costs of Shs# 52,114,000/^ e But the Company is still in existence, twenty years after the sale by August, 1974. It would appear that Mr. Matovu was describing the situation after th£# sales. But he did not say that the Company Could not pay off its debts. What the Company is doing or how it has been managing to stay alive /

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time and opportunity to see who started the shooting and this is especially so, when it was around 9:00 p.m. with no security lights. His explanation was that he made the statement after he had come from the operating theatre for removal of a bullet from his buttocks. We would not consider this to be satisfactory explanation especially when his Police Statement was systematic and in accordance with what would naturally follow that type of shooting and confusion.

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**it** Still on 1st count from the evidence of PW3, it is doubtful if he was able to recognise who shot first, because PW3 stated in his evidence that the appellant shot 3 people namely; PC Bahirwe, Mrs. Bahirwe and PC Oumo. And yet, he stated in his evidence later on that when the appellant shot first, he, the witness, ran behind and from there, he heard Late PC Bahirwe say, "come and assist me". He stated he was able to see all that, because there was moonlight.

We would not In view of the above evidence, we think that it was difficult for PW3 to be able to recognise who did what, and especially when the appellant had also been shot, presumebly by the deceased, rule out appellant's defence that he shot PC Bahirwe in self-defence since both, the appellant and Late PC Bahirwe were each armed with a gun. In view of the above, it is highly possible that the appellant shot Late PC Bahirwe in self-defence.

Self-defence. may defend himself. But everything will depend As it was observed by the We must now deal briefly with the law regarding the defence of It is based on common sense that a man who is attacked It is both good law and good sense that he may do, but may only do what is reasonably necessary. on the particular facts and circumstances. Privy Council in Palner v R (1971), ALL ER 1077 at page 1088:

"It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sence to permit some action of retaliation which was wholly out of proportion

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to the necessities of the situation. If an attack is serious so that it put someone in immediate peril then immediate defensive action may be necessary. If the moment is one of surprise for someone in imminent danger he may have to avert the danger by some instant reaction .... If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety\* the exact measure of his necessary defensive action."

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The above was adopted in Katera Anor v Uganda by the Uganda Court Appeal in Cr. Appeal No. 5 of 1978 reported in (1979) HCB 117.

In the instant case, considering the fact that both the appellant and PC Bahirwe were armed with their guns and each had opened Safety Catchs of his gun, when each of the prosecution witnesses does not seem to have exactly seen who shot first, we would accept appellant's evidence that he was shot first in the neck and chest by Late PC Bahirwe before he shot him (deceased PC Bahirwe) in self-defence.

In the circumstances, we consider that the appellant must have considered his life in immediate danger and was therefore entitled to defend himself with the only weapon, which was loaded with bullet, ■in—the\_circumstances,—therefrrre, W would^al^ow the appeal on the 1st Count, quash conviction and set aside the sentence.

Turning to the 2nd Count, where the appellant was alleged to have murdered Mrs. Bahirwe, there was no evidence from any witnesses, prosecution and appellant to prove that she was in any way armed with any lethal weapon and threatened to kill the appellant. In fact, there was no evidence to show that appellant's life was in imminent danger from Mrs. Bahirwe. Mrs. Bahirwe never quarrelled with the appellant and we would therefore find the defence of self defence not available to the appellant in respect of the 2nd Count. However, we would agree with the Learned Trial Judge that the appellant having been drinking malwa together with Late PC Bahirwe, PC Oumo and others for almost 7 hours in their Police Barracks, he was incapable of forming the necessary intent to constitute the offence of murder.

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We are satisfied that there was sufficient evidence on record to constitute the offence of murder. to support the Trial Judge's finding that the appellant was by reason of intoxication incapable of forming the necessary intent Therefore, the appellant was rightly convicted of Manslaughter contrary to Section 182 of the Penal Code Act.

We accordingly find no merit in the appeal on this Count, which is hereby dismissed.

Dated at Mengo this day of . . 199^7

B. J. Odoki JUSTICE OF SUPREME COURT.

JUSTICE OF SUPREME~COURT'.---

N. karokora JUSTICE OF SUPREME COURT.

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