[2024] UGCommC 176

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) CIVIL SUIT NO. 313 OF 2021**

## 10 **SSEKIMWANYI HAKIM ::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF VERSUS**

#### **1. SSEBULIBA RODGERS**

**2. KIYONGA UMAR :::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

## 15 **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA JUDGMENT**

#### Introduction

The Plaintiff filed this suit on 4th May, 2021 seeking special and general 20 damages, interest and costs of the suit arising from the Defendants' negligence which resulted into the loss of the Plaintiff's motor vehicle.

#### Brief facts

The facts constituting the Plaintiff's claim are that on 19th November, 2016, the Plaintiff bought a motor vehicle registration No. UAZ 427Q from

25 MINHAS Motors (U) Ltd at a consideration of UGX 72,000,000/= (Uganda Shillings Seventy-Two Million Only). After the purchase of the motor vehicle, the Plaintiff entrusted it with the 1st Defendant who then brought the 2nd Defendant as the turn man. That the 1st Defendant was to drive the motor vehicle and give the Plaintiff a weekly payment of UGX 800,000/= (Uganda Shillings Eight Hundred Thousand Only) which the 1st 30 Defendant complied with without default.

- 5 On 28th March, 2019, the Plaintiff got information from 3rd parties that the Defendants had lost the motor vehicle at Kawempe Ttula near Vegas bar. When the Plaintiff confronted the 1st Defendant about this information, he informed the Plaintiff that he and the 2nd Defendant had lost the motor vehicle when they parked it alongside the road, which information was - 10 found not to be true. To that, the Plaintiff reported the matter to Police and the Defendants were arrested and charged with theft of the motor vehicle at Matugga Magistrate's Court.

The trial Magistrate acquitted the Defendants and advised the Plaintiff that the matter was contractual and that the Plaintiff should sue for breach of

15 contractual terms, loss of a motor vehicle, lost income and damages hence this suit.

The summons were served on the Defendants as per the affidavit of service deponed by Nampaka Patricia dated 14th May, 2021 but the Defendants did not file a defence as required by law. An interlocutory judgment was 20 entered in favour of the Plaintiff on 7th June, 2022 and the matter was fixed for formal proof.

### Representation

The Plaintiff was represented by Counsel Musinguzi Rogers of M/s Luzige,

25 Lubega, Kavuma & Co. Advocates.

The Plaintiff was directed to file his written submissions which he did and the same have been considered by this Court.

### Issues for Determination

1. Whether the loss of the Plaintiff's motor vehicle was caused by the 30 Defendants' negligence?

5 2. Whether the Plaintiff is entitled to the remedies sought?

## Issue No. 1: Whether the loss of the Plaintiff's motor vehicle was caused by the Defendants' negligence?

### Plaintiff's submissions

Counsel for the Plaintiff averred that it is the duty of the party who alleges 10 the existence of the facts to prove the same and the standard required of him or her is on the balance of probabilities as per **Section 101 of the Evidence Act, Cap. 6.**

Counsel submitted that for one to be found liable in negligence, the Plaintiff must show that the Defendant owed the Plaintiff a duty of care, 15 the Defendant acted in breach of that care which resulted into the loss and thus is liable for the damage as per the case of *Donoghue Vs Stevenson [1932] AC 562.*

Counsel further submitted that when the Plaintiff handed over his motor vehicle to the Defendants, they immediately owed a duty of care to the

20 Plaintiff in respect of the motor vehicle. Therefore, their failure to be on the watch amounted to breach of care and hence are liable for the loss suffered by the Plaintiff.

In conclusion, Counsel for the Plaintiff submitted that the Defendants' action of leaving the motor vehicle alongside the road unattended to 25 amounted to negligence.

### Analysis and Determination

Where the Court sets down a suit for formal proof after a default order has been made, the Plaintiff is under a duty to place before the Court evidence

5 to sustain the averments in his or her plaint as was held in the case of *Kirungi and Another Vs Kabiya and Others [1987] KLR 347.*

It is therefore a settled principle of evidence that whoever desires any Court to give judgment as to any legal right or liability must prove the existence of facts which he asserts. (See: **Sections 101, 102 and 103 of the**

10 **Evidence Act.)**

In the instant case, the Plaintiff seeks reliefs on ground that the Defendants were negligent when they lost his motor vehicle.

Negligence has been defined to mean the omission to do something which a reasonable man, guided upon these considerations which ordinarily 15 regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do. (See: the case of *Donoghue Vs Stevenson (supra) and Salmond and Heuston on the Law of Torts (19th Edition).*

In apportioning liability to a Defendant in negligence, the case of

20 *Donoghue Vs Stevenson (supra)* laid down the following ingredients:

- i. There existed a duty of care owed to the Plaintiff by the Defendant. - ii. The Defendant breached that duty. - iii. The Plaintiff suffered injury or damage as a result of the breach of the duty. - 25 The above have been echoed in our jurisdiction such as in the cases of *Security 2000 Ltd Vs Cumberland CACA No. 916 of 2014 and H. Kateralwire Vs Paul Lwanga [1989-90] HCB 56* among others*.*

- 5 It is now trite that the standard of care in negligence cases is reasonableness and the degree of care varies directly with the risk involved. (See: *Simon Apollo Nangiro and Another Vs Uganda Electricity Distribution Company Ltd Civil Suit No. 489 of 2004*). - As to whether the Defendants owed the Plaintiff a duty of care, it was 10 **PW1's** testimony that after purchasing his motor vehicle registration number UAZ 427Q, he entrusted it with the 1st Defendant who then brought on board the 2nd Defendant as the turn man. **PW1** further testified that the 1st Defendant was supposed to drive the motor vehicle with the assistance of the 2nd Defendant and give him UGX 800,000/= per week. 15 That all was going well until when **PW1** found out that the Defendants had lost his motor vehicle after parking it at Kawempe Ttula near Vegas bar

which does not provide parking services. From the above evidence, it is shown that **PW1** entrusted the custody of his motor vehicle with the Defendants. Therefore, their duty of care 20 towards the Plaintiff was to ensure the safety of the Plaintiff's motor vehicle

in their custody. Accordingly, I find the Defendants to have owed the Plaintiff a duty of care as custodians of the Plaintiff's motor vehicle.

As to whether the above duty of care was breached, 1 shall rely on the explanation of **Hon. Justice Stephen Mubiru** in the case of *Oil Energy* 25 *Ltd Vs Komakech Robert HC Civil Appeal No.111 of 2019* where he stated that;

"*A breach of duty occurs when the party owing the particular duty falls below the standard of behavior that is required by the particular duty in question. The question of whether the conduct of* 30 *the Defendant has met appropriate standard of care in the law of negligence is a question of mixed fact and the law. Once the facts*

- 5 *have been established, the determination of whether or not the standard of care was met is one of law. The basic requirement of foresight is simply that the Defendant must have foreseen the risk of harm to the Plaintiff at the time he or she is alleged to have been negligent*." - 10 According to the case of *Re Polemis & Furness Withy & Co. [1921] 3 K. B. 560,* **Scrutton L. J** stated that to determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage. - Therefore, it is settled law that for foreseeability of danger, there must be 15 sufficient probability to lead a reasonable man to anticipate danger or injury. The reasonable man only has to do what is realistic in order to avoid risks of harm. In considering what a reasonable man would do in a given situation, regard to human nature has to be considered hence, reasonable care would amount to steps to be taken in fulfilling the duty of 20 care owed.

In proof of his case, **PW1** testified that upon the 1st Defendant informing him that the motor vehicle was stolen while it was parked at Kawempe Ttula near Vegas bar, he made an inquiry and discovered that at the said 25 premises, no parking services were offered.

This implies that by the time the Defendants parked the motor vehicle at a place without parking services, they should have known the associated dangers.

As was held in the case of *Jane Nakawunyu Vs H. K Kafureka HCCS* 30 *No.19 of 1993*, a prudent man will guard against the possible negligence of others when experience shows such negligence to be common.

- 5 The Defendants should have anticipated that parking a motor vehicle next to a bar without parking services exposed the motor vehicle to several risks including theft. The Defendants therefore, should have exercised the duty to keep the Plaintiff's motor vehicle safe but failed by leaving it unattended to in a place without parking services and thus were negligent. - 10 Therefore, Issue No.1 is answered in the affirmative.

Issue No. 2: Whether the Plaintiff is entitled to the remedies sought?

Counsel for the Plaintiff submitted that the Plaintiff is seeking special damages, general damages, interest and costs of the suit.

- a) Special damages - 15 Counsel for the Plaintiff submitted that the Plaintiff seeks to recover UGX 72,000,000/= being the cost of the suit motor vehicle to which he presented a copy of the registration book marked as annexure **"PEX 1"**, the Sales Agreement marked as annexure **"PEX 2"** and receipts marked as annexure **"PEX 3"**. - 20 The law relating to special damages is settled. In the case of *W. M Kyambadde Vs Mpigi District Administration [1983] HCB 44,* it was held that the guiding principle is that special damages must be specially pleaded and strictly proved. The evidence can be documentary or otherwise, provided evidence is led to prove the special damages so sought. - 25 In his plaint, the Plaintiff under paragraph 6 sought special damages for the cost of the suit motor vehicle to the tune of UGX 72,000,000/=. **PW1** led evidence to show how much he spent on buying the suit motor vehicle through the Sales Agreement marked as annexure **"PEX 2"** and the receipts marked as annexure **"PEX 3".**

5 Annexure **"PEX 2"** is the Sales Agreement dated 9th November, 2016 wherein the buyer Mr. Ssekimwanyi Hakim, the Plaintiff bought an Isuzu Juston Reg. No. UAZ 427Q from MINHAS Motors (U) Ltd at UGX 72,000,000/=.

According to annexure **"PEX 2"** an initial deposit of UGX 39,500,000/= 10 was paid upon the execution of the Agreement and a balance of UGX 32,500,000/= was to be paid later in installments. **PW1** adduced annexures **"PEX 3"** which are receipts proving payment of the balance.

In the premises, the Plaintiff has proved the sum of UGX 72,000,000/= being sought as the cost of the motor vehicle and the same is hereby 15 awarded.

Counsel for the Plaintiff further submitted that the Plaintiff also seeks to recover UGX 230,400,000/= under special damages being loss of future income since 2018 to date. The amount is speculative and no evidence has been adduced to entitle the Plaintiff to the amount sought. The Plaintiff

20 did not adduce any form of evidence to prove the specific amount prayed for or the considerations he took into account thereof and therefore Court hereby declines to award the same.

## b) General damages

Counsel for the Plaintiff submitted that from 2019 when the Defendants 25 negligently caused the loss of the Plaintiff's motor vehicle, the Plaintiff has suffered a lot of inconvenience and mental anguish for which he prays for general damages. Counsel prayed for general damages of UGX 50,000,000/=.

In the case of *Kabandize John Baptist and 21 Others Vs Kampala* 30 *Capital City Authority CACA No. 36 of 2016* Court held that:

- 5 *"The general rule regarding the measure of general damages is that, the award is such a sum of money that will put the party who has been injured or who has suffered as adjudged by Court in the same position as he or she would have been had he or she not sustained the wrong for which he or she is getting the compensation."* - 10 It is also trite that general damages are awarded at the discretion of Court and are compensatory in nature. (See: *Takiya Kashwahiri and Another Vs Kajungu Denis CACA No. 85 of 2011).* They are not meant to enrich the Plaintiff. In the instant case, the Plaintiff was deprived of his motor vehicle from March, 2019 and the Defendants have not compensated him 15 for the loss. In light of the above and given the fact that the Plaintiff was deprived of his motor vehicle which was a business asset and thus no income from the same was being earned from the same which greatly inconvenienced him both financially and mentally, I accordingly award the Plaintiff UGX 30,000,000/= (Uganda Shillings Thirty Million Only) as 20 general damages which I believe would be sufficient to atone for the loss and inconvenience occasioned to the Plaintiff by the Defendants over the - c) Interest

Counsel for the Plaintiff averred that the Defendants' actions deprived the 25 Plaintiff the right to use his money and thus an interest rate of 25% should be awarded until payment in full.

time and restore to the Plaintiff some satisfaction.

**Section 26 of the Civil Procedure Act, Cap. 71** is to the effect that the Court can award interest that is just and reasonable. As was held in the case of *Milly Masembe Vs Sugar Corporation (U) Ltd and Another SCCA* 30 *No. 1 of 2000* the guiding principle is that interest is awarded at the

5 discretion of the Court but the Court should exercise the discretion judiciously taking into account all the circumstances of the case.

Further in the case of *Mohanlal Kakubhai Radia Vs Warid Telecom Uganda Ltd HCCS No. 224 of 2011* it was held that in determining a just and reasonable rate, Courts take into account the following:

10 *"the ever rising inflation and drastic depreciation of the currency. A Plaintiff is entitled to such rate of interest as would not neglect the prevailing economic value of money, but at the same time one which would insulate him or her against economic vagaries and the inflation and depreciation of the currency in the event that the* 15 *money awarded is not promptly paid when it falls due."*

Counsel for the Plaintiff prayed for a 25% interest rate on special damages and general damages to be awarded until payment in full. I find that interest rate to be very high and the Plaintiff has not provided a convincing 20 justification for the same. Furthermore, the claim for future income was not granted and the sum of UGX 72,000,000/= is for cost of the motor vehicle. I therefore decline to award interest on that amount. Accordingly, I award interest at the rate of 6% per annum on general damages from the date of Judgment until payment in full.

## 25 d) Costs of the suit

**Section 27 (2) of the Civil Procedure Act** provides that costs of any action shall follow the event unless the Court for good reason orders otherwise. Further, in the case of *Uganda Development Bank Vs Muganga Construction Co. Ltd [1981] HCB 35,* **Hon. Justice Manyindo**

30 (as he then was) held that:

5 *"A successful party can only be denied costs if it is proved, that but for his or her conduct, the action would not have been brought. The costs will follow the event where the party succeeds in the main purpose of the suit."*

In the circumstances, since there are no reasons to deprive the Plaintiff of 10 the same, he is entitled to costs of the suit.

In the premise, the following orders are issued:

- 1. The 1st and 2nd Defendant are jointly and severally liable for negligence. - 2. Cost of the motor vehicle amounting to UGX 72,000,000/= (Uganda - Shillings Seventy-Two Million Only) shall be paid by the 1st and 2nd 15 Defendants to the Plaintiff. - 3. General damages of UGX 30,000,000/= (Uganda Shillings Thirty Million Only) shall be paid by the 1st and 2nd Defendants to the Plaintiff. - 20 4. Interest on general damages in (3) above at the rate of 6% per annum from the date of Judgment until payment in full. - 5. Costs of the suit are awarded to the Plaintiff.

I so order.

25 Dated, signed and delivered electronically this **23rd** day of **May**, **2024.**

Patience T. E. Rubagumya

## **JUDGE**

23/05/2024

30 7:30am