[2024] UGHC 445

# **`THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT TORORO CIVIL SUIT NO.0006 OF 2022 CONSOLIDATED WITH CIVIL SUIT NO. 007 OF 2022**

**OKOLODI MAXIMILIANO ::::::::::::::::::::::::::PLAINTIFF**

**VERSUS**

#### **1. TUMWA LUCAS**

**2. NOVO ENTERPRISES LTD: DEFENDANTS**

- **3. ACHOLA PATRICIA** - **4. AKAPOLON JUNIOR** - **5. OBELI TRAVIS** - **6. APIO ANNA TEREZA:::::::::::::::::::::::::::: PLAINTIFFS**

**(***Suing through their next friend Omusungu Denis***)**

#### **VERSUS**

#### **1. TUMWA LUCAS**

**2. NOVO ENTERPRISES LTD.::::::::::::::::::::::::::::::::::::: DEFENDANTS**

#### **JUDGMENT**

# **BEFORE: HON. DR. JUSTICE HENRY l. KAWESA**

The aforestated suits were brought by the Plaintiffs against the Defendants under **Section 5 and 6 of the Law Reform; (Miscellaneous Provisions) Act Cap, 79**, for negligence causing death of a one; Okiror Peter, a boda-boda cyclist, and; a one; Nyafwono Eunice, his passenger at the time of the incident, (*hereinafter collectively referred to as the deceased*).

The 1st Defendant is an employee of the 2nd Defendant, who is alleged to be vicariously liable for the latter's actions of negligently causing the death of the deceased persons while driving a Tata Motor Vehicle Registration Number IJAX 105G The Plaintiffs allege that the 1st Defendant negligently/recklessly drove on a clear, dry, and straight line and crossed into the deceased. They also allege that the Defendants admitted liability by contributing Ugx. 5,000,000/- *(five million shillings)* to the deceased's families towards burial expenses. The Defendants filed a joint written statement of defence in which they denied liability. They alleged that the death of Okiror Peter was due to his own negligence when he left a free and safe lane and wrongfully overtook the 2nd Defendant's motor vehicle from the left side and lost control of his motorcycle hence this accident. They also faulted Nyafwono Eunice for failing to look out for her safety and failing to stop her rider from unnecessarily overtaking, among others

The Plaintiffs are represented by M/S Denis Kakeeto Advocates; and the Defendants are represented by M/S Nakiranda & Co Advocates.

The Court has read and appreciated the submissions of Counsel for the parties and shall take them into consideration in resolving the issues at hand.

During scheduling, three issues for resolution were set forth as here below.

- *1. Whether the 1st Defendant was negligent while driving Motor Vehicle Registration No. UAX 105G?* - *2. Whether the 2nd Defendant is vicariously liable for the actions of the 1st Defendant?* - *3. What remedies are available to the parties?*

At trial, the Plaintiffs called five (5) witnesses, and the Defendants called one (1) witnesses. The Plaintiffs' witnesses are, Okolodi Maximiliano; (PW1), Masaba Patrick; (PW2), Omalla Benson, (PW3); Ekituno Wilson; (PW4), and Omusungu Dennis; (PW5); and the Defendants' witness is Tumwa Lucas; (DWI). The witnesses' evidence in chief was given by way of witness statements whose contents are on record

I resolve the issues as here below:

**Issue No. 1**

Whether the 1st Defendant was negligent while driving Motor Vehicle Registration No. IJAX 105G?

In all civil matters the Plaintiff bears the burden to prove the case on the balance of probabilities as per sec of the evidence Act The standard of proof in civil cases is on a balance of probability. The law of evidence is that: *"He who alleges the existence of facts must prove so." (Section 101 Evidence Act*).

The law in **Section , 102, and 103 of the Evidence Act** further stipulates that whoever asserts a fact and wants Court to believe in their existence, must prove that they exist. In this case the evidence adduced through PW I and PW5 was hearsay. Both were not at the scene when the accident happened and the Court shall not rely on them in view of the law on hearsay evidence.

However, PW2 PW3, and PW4 were present and witnessed the incident. PW2 and PW3 testified that the motorcycle carrying the deceased was on the right side of the road. This appears to be in contrast with DWI 's testimony that the motorcycle was on the left side, and in particular that the accident happened when the Okiror Peter was trying to overtake their motor vehicle from the left side hence losing control thus the accident.

PW2, PW3, PW4 and DWI 's evidence is very crucial to the issue at hand. In addition to their evidence, the Court has carefully looked at DEXHI, which is a sketch plan of the accident in question

DEXHI shows that the road on which the accident happened has two lanes heading in one direction, that is to say, to Tororo, where the deceased and DWI were heading to. The issue at hand revolves around the said two lanes. DEXHI further shows that the motorcycle, the body of one of the deceased, and suspected point of contact between the motorcycle and vehicle on the lane on the right hand side. This appears to corroborate PW2 and PW3's testimonies that the motorcycle carrying the deceased was on the right hand side of the road

In comparison, DWI's testimony was that he heard a loud bang from the back of the motor vehicle he was driving; that his colleague who was seated in the passenger's seat of the motor vehicle opened his door side to check what had happened and told him that a motorcyclist had knocked himself at the back of the vehicle

It is a notorious rule in this jurisdiction that driving happens on the left hand side of the road. The Court takes notice of the rule under **Section 56(1) of the Evidence Act Cap.6**). It is also common knowledge that to enable compliance with the said rule, most cars are built so that the driver sits on the right hand side. Thus, in the absence of any contrary evidence, this Court presumes, by virtue of **Section 113 of the same Act**, that DWI was seated in a seat on the right hand of the motor vehicle and that the seat where his alleged colleague was seated was on the left side of the same motor vehicle. This then implies that the said colleague was seated on the lane on the left side of the road

That said, DEXHI clearly shows that the accident happened on the lane on the right side of the road and this is corroborated by the testimonies of PW2 and PW3. It is also a fact that DWI did not stop when the accident happened. He continued driving to his destination for fear of mob justice, according to his testimony. In light of these observations and the preceding paragraph, this Court finds that it is highly improbable that DWI 's alleged colleague immediately witnessed the accident by allegedly opening a car door of the left side where he was seated. What is probable is that DWI himself immediately witnessed what he alleges to have been witnessed by his alleged colleague, considering that he was seated in a seat on the side of the road where the accident happened

The Court highly doubts DWI's testimony about what happened immediately before the accident in question. Having weighed all the circumstances, *the Court* *believes PW2 and PW3's testimonies that the deceased were on the lane on the right side of the road*

The Defendants' Counsel argued that the suspected point of impact on DEXHI is on the left side of the Defendant vehicle,

#### **Issue No.2:**

# Whether the 2nd Defendant is vicariously liable for the actions of the 1st Defendant?

It is not in dispute that at the time of the accident involving the deceased, the 1st Defendant was transporting cement to the 2nd Defendant's premises on a motor vehicle belonging to the 2nd Defendant. It is also undisputed that the 1st Defendant was employed by the 2nd Defendant as a driver for the said motor vehicle at the material time. In other words, the 1st Defendant was in the course of his employment when the accident occurred As per *Stevenson Jordan & Harrison Ltd versus McDonald & Evans (1952) 1 TLR*, Court held that;

*'an employer is liable for the tortuous acts for his or her servant in the course of his or her employment'.*

In this case, l am in agreement with the Plaintiffs' Counsel and find that the 2nd Defendant is liable for the actions of the 1st Defendant.

*The second issue is accordingly found in the affirmative as well.*

#### **Issue No 3:**

# **What remedies are available to the parties?**

What suggests that the accident was on the lane on the left side of the road.

This Court respectfully disagrees with Counsel. Accordingly, the theory that the deceased left a free and safe lane and wrongfully overtook the 2nd Defendant's motor vehicle from the left side thus occasioning the accident is inconceivable. What is conceivable, considering PW2 PW3 and PW3's testimonies, in addition to DEXHI, is that DWI was driving at a terrible speed on the lane on the left of the road and that he started leaving it at a distance proximate to the deceased to the lane on the right where he eventually collided with the deceased who were riding at the left of that lane.

The Court having addressed itself to the evidence, and the principles on negligence in the authorities cited by Counsel for the parties, it finds that the 1st Defendant was negligent while driving Motor Vehicle Registration No. UAX 105G. Therefore, the Court is in agreement with Counsel for the Plaintiffs that this issue should be found in the affirmative.

The Plaintiffs sought identical remedies in their respective plaints that is to say;

- i) Special damages of Ugx. 82,300 (*eighty-two thousand and three hundred shillings only*) spent on a Police report - ii) Interest on (a) from the date of filing the suit until payment in full - iii) General damages for loss of support and dependency. - iv) General damages for loss of expectation of the life of the deceased - v) General damages for inconvenience, anguish, pain and mental suffering occasioned to the family of the deceased - vi) Interest on (c), (d), and (e) from the date of filing the suit until payment in full - vii) Costs of the suit.

The above remedies shall be handled in respect to each Plaintiff therefore; Special Damages and Interest thereon.

The Defendants' Counsel argued that the Plaintiffs are not entitled to special damages because there is no liability attributed to the Defendants in regard to the final Police report dated 20th May 2022 and marked as DEXH3 and DEXH2

Page **6** of **13** On the contrary, the Plaintiffs' Counsel suggested that the Plaintiffs' are respectively entitled to special damages since they incurred the said expense and that they pleaded and strictly proved it. There is no dispute that the Plaintiffs incurred expenses on the respective Police reports. In fact, *PEXH5, a copy of a receipt of payment of the said expense was in adduced in proof thereof*.

The fact that no liability was attributed to the Defendants in the respective Police reports does not take away the liability established by this Court and the fact that the Plaintiffs incurred an expense to access them. In principle, special damages are awarded on the basis of proof of any expense or loss actually incurred as a result of wrongful acts of another (*Ronald Kasibante versus Shell Uganda Ltd HCCS No. 542 of 2006; Hadley versus Baxendale (1843-60) ALL ER 461*)

Therefore, Court, having established that the Plaintiffs incurred an expense, and that this owed to the Defendants' fault, **it awards them special damages as claimed in their respective pleadings**.

# Further, **interest at a rate of 18% is as well awarded to the Plaintiffs on the said damages from the date of filing the suit until payment in full**

The Court shall now turn to the remedies under (c), (d), and (e) which are generally general damages and interest thereon. These shall be handled collectively.

# General Damages, and Interest thereon

It is trite law that general damages are awarded at the discretion of Court in respect of what the law presumes to be the natural and probable consequence of the Defendant's actions *(Storms vs. Hutchinson [1 905] AC 515, and Kibimba Rice Co. Ltd versus Umar Salim [1992] V KAI-R 17)***.** Further, the Court is persuaded by the observations in the case of *Isaac Mawanda & Others versus Tugumisirize Abel & Anor HCCS No. 104 of 2017* where the Court in assessing the claim to general damages by dependents took account of the relationship between the deceased and the dependents, the personal circumstances of the deceased and the dependents, such as age, financial means and needs. The Court went on to observed that damages under the **Law Reform (Miscellaneous Provisions) Act Cap. 79** take into account any pecuniary benefit accruing to the dependents in consequence of the death of the deceased; and that pecuniary loss can be ascertained by balancing between the loss to the claimants of future pecuniary benefit and any other pecuniary advantage which comes to them by reason of death, for instance insurance

### In this case I will start with Okiror Peter (deceased).

The evidence shows Okiror Peter had four dependent relatives who included, Ashiepet Selestine aged 17 (his sister); George Oyide aged 12 (his brother); Atenge Florence aged 47 (his mother); and Okolodi Maximiliano aged 57 (his father).

It is presumed that the said four dependents lost support and dependency, and expectation of life of the deceased. What is not clear though is whether they solely relied on the deceased for a living seeing that his relationship with them is not one where he would be directly and ordinarily responsible for their survival.

Nevertheless, as a brother and son to the said respective dependents, it is presumed that he supported them in one way or the other, even though the support might not have been usual

The evidence on record shows that the deceased died aged 23 years According to the case of *Otim Solomon versus Nsereko Anthony & Anor HCCS No.275 of 2014*, Court took notice of a fact that life expectancy in Uganda is 60 years. Therefore, the deceased still had about 37 years to live, which years the said dependents lost.

Page **8** of **13** Considering this fact; the observation about the deceased's relationship with the said dependents; the fact that the deceased was a motorcyclist (boda boda); the age of the said dependents; the vagaries of life to which the deceased was not immune from, and the fact that the deceased's family already received a benefit from the 2nd Defendant in form of a contribution towards burial expenses, this Court awards Ugx.14,000 000/-

(*fourteen million shillings only)* as general damages for loss of support and dependency; and Usgs. 9,000,000/- (*nine million shillings only )*as general damages for loss of expectation of the life of the deceased

In addition, the Court also awards Ugx. 7,000,000/- (*twenty seven million shillings only)* as general damages for inconvenience, anguish, pain and mental suffering occasioned to the family of the deceased

#### **The Court shall now turn to the second deceased, Nyafwono Eunice.**

The evidence shows that the deceased had 8 dependents who included, Achola aged 17 years (daughter); Akapolon Nathan aged 12 (son); Awori Phiona aged 19 (daughter); Apio Anna Tereza aged 7 (daughter); Obeli Travis aged 3 (son); Emoit John Bosco aged 75 (father); and Amojong Demeterial aged 68; (mother).

It is presumed that the said seven dependents lost support and dependency, and expectation of life of the deceased. However, like it is with Okiror Peter, it is not clear whether the said dependents solely relied the said deceased for a living notwithstanding that she was a parent to most of the said dependents. PEXH9 indicates that the said deceased had a husband who was even tasked with following up on compensation from the Defendants. It is thus presumed that the said husband also supported the deceased's children as well. Nevertheless being a mother, it is presumed that the support and dependency she gave her children was immeasurable as compared to one she gave to her parents. of significant importance is that her children lost maternal support and dependency for the rest of their lives.

The evidence on record shows that the deceased died at the aged of 40 years. Thus, she had about 20 years more to live and support the said dependents, among others, considering the case of *Otim Solomon versus. Nsereko Anthony & Anor*, (*supra)*.

Considering the 20 years factor in the preceding paragraph; the fact of the deceased was a mother to most of the said dependents, and a child to only two of them; the fact that the deceased was a house wife (as indicated in PEXH2/Police Report to the Plaintiffs in Civil Suit No.007 of 2022); the young ages of most of the said dependents; the vagaries of life to which the deceased was not immune from; and the fact that the deceased's family already received a benefit from the 2nd Defendant in form of a contribution towards burial expenses, this Court awards;

- Ugx.25,000,000/- (*twenty five million shillings only)* as general damages for loss of support and dependency, and; - Ugx. 15,000,000/- /- (*fifteen million shillings only)* as general damages for loss of expectation of the life of the deceased - Court also awards Ugx. 7,000,000 as general damages for inconvenience, anguish, pain and mental suffering occasioned to the family of the deceased in addition - Lastly, interest at a rate of 18% is awarded on every sum constituting general damages, but from the date of judgment until payment in full - Finally, the Plaintiffs prayed for costs of the suit; and having succeeded in their respective suits against the Defendants, the costs are hereby awarded to them.

## **Result**

Judgment is entered in favour of the Plaintiff in Civil Suit No.006 of 2022 in the following terms

1. An order that the 2nd Defendant shall pay Ugx. 82,300/- (*eighty-two thousand and three hundred shillings only*) as special damages to the Plaintiff, and; interest thereon at a rate of 18% from the date of filing the suit until payment in full.

- 2. An order that the 2nd Defendant shall pay Ugx. 14,000,000/- (*fourteen million shillings only*) as general damages for loss of support and dependency by the family of the late Okiror Peter. - 3. An order that the 2nd Defendant shall pay Ugx. 9,000,000 (*nine million shillings only*) as general damages for loss of expectation of the life by the family of the late Okiror Peter. - 4. An order that the 2nd Defendant shall pay Ugx. 7,000,000/- (*seven million shillings only*) as general damages for inconvenience, anguish, pain and mental suffering occasioned to the family of the late Okiror Peter. - 5. Interest on (2), (3), and (4) at a rate of 18% from the date of judgment until payment in full - 6. An order that the Defendants shall jointly and severally pay the costs of the suit. - 7. Further, judgment is entered in favour of the Plaintiff in Civil Suit No.007 of 2022 in the following terms: - 8. An order that the 2nd Defendant shall pay Ugx.82,300/- (*eighty-two thousand and three hundred shillings only*) as special damages to the Plaintiff; and interest thereon at a rate of 18% from the date of filing the suit until payment in full. - 9. An order that the 2nd Defendant shall pay Ugx.25,000,000/- (*twenty-five million shillings only*) as general damages for loss of support and dependency by the family of the late Nyafwono Eunice - 10. An order that the 2nd Defendant shall pay Ugx15,000,000/- (*fifteen million shillings only*) as general damages for loss of expectation of the life by the family of the late Nyafwono Eunice. - 11. An order that the 2nd Defendant shall pay Ugx. 7,000,000 (*seven million shillings only*) as general damages for inconvenience, anguish, pain and mental suffering occasioned to the family of the late Nyafwono Eunice. - 12. Interest on (2), (3), and (4) at a rate of 18% from the date of judgment until payment in full. - 13. An order that the Defendants shall jointly and severally pay the costs of the suit.

Delivered at Tororo this ………………. Day of ……………………….. 2024

I so order.

Dr. Henry I. Kawesa

# **JUDGE**

5/04/2024

## 5/04/2024

Counsel Namwongoma Jackline for the Plaintiff.

Plaintiff absent.

Counsel Obbo Alex Brian holding brief for Kyeyune Godfrey; counsel for the Defendants.

Defendants absent.

## Counsel for the Plaintiff:

Matter is coming up for a Judgment and we are ready to receive it.

It is read in the presence of both counsel and the Applicant.

Sgd:

Edimu Hellen

5/4/2024