[2000] UGCA 44

#### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **AT KAMPALA**

#### CORAM: HON. MR. JUSTICE C. M. KATO, JA HON. MR. JUSTICE S. G. ENGWAU, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

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### **CIVIL APPEAL NO. 16 OF 2000**

# UGAMDA BREWERIES LTD.::::::::::::::::::::::::::::::::::::

#### **VERSUS**

## **UGANDA RAILWAYS CORPORATION:::::::RESPONDENT**

### (Appeal from the Judgment of the High Court at Kampala before Hon. Justice R. Okumu Wengi dated 20^th October 1999 in HCCS No. 444 of 1997)

## JUDGMENT OF C. N. B. KITUMBA, JA

This appeal is against the judgment and orders of the High Court at Kampala (Okumu Wengi J.) dated 20-9-1999. The appellant brought an action in negligence against the respondent claiming for compensation arising out of a collision between its lorry and the respondent's locomotive at a railway crossing at Old Port Bell Road Kampala.

The appellants prayed for:

(a) special damages of Ug. Shs. 107,453,800/= being repair costs, professional costs of having alternative transport during the period when the vehicle was under repair.

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- (b) Alternatively, general damages with interest at court rate. - $(c)$ Costs of the suit.

The respondents denied liability and counter claimed for the extensive damage inflicted on their locomotive. They prayed for the following:-

(a) D. M. 399,598.80 being costs of spares.

(b) Ug. Shs. 558,536 labour costs

- (c) General damages - (d) Interest - $(e)$ Costs.

The facts giving rise to this appeal are as follows. On the 26^th day of June 1992 the appellant's semi trailer was moving towards Port Bell and the respondent's locomotive train which was coming from an industrial railway siding rammed into it. As a result of that collision extensive damage was caused both to the locomotive and to the semi trailer.

The following issues were framed at the trial.

- Whether the accident was caused solely by the $(1)$ negligence of the plaintiff's driver. - Whether the accident was caused solely by the $(11)$ defendant's engine driver. - Whether the plaintiff suffered any loss as claimed. $(111)$ - Whether the defendant suffered any loss as claimed $(1V)$ in the counter claim. - $(V)$ Remedies, if any, whoever wins, are entitled to

The learned trial Judge answered issues 1, and 4 in favour of the respondent. He found that the accident had been caused solely by the negligence of the appellant's driver, and that the respondent had proved its counter claim. He awarded a sum of Ug. Shs 280 million to the respondent on the counter claim, costs of the suit and interest at 12%. The learned trial Judge held that the respondent had not proved any general damages and did not award them any. Hence this appeal.

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There are seven grounds ofappeal namely:-

- " I. The learned Triol Judge erred in law andfocl when he failed to properly evaluate the evidence on record hereby coming to a wrong decision thal the accident was solely ca used by the negligence of the appellonl's driver. - 2. Tlte Learned Triol Judge erred in law and fact when he mode his finding basing on specultttion ond exlroneous factors. - 3. Tlte Letrned triol Judge erred in law andfact when he allowed the respondent's counterclaim of Ug, Shs. 280 million yet there was not enough evidence to prove the same by the slandard requiredfor proofof speciol damoges. - 4. Tlte learned lrial Judge erred in law and ftrct when he allowed the Respondent to depart from its pleodings. - 5. The Leorned Triol Judge erred in law ondfoct when he failed to find that in the circumstonces of the case and on a bslonce of probabilities the appellont proved its cose ond should have been awarded Ug, Shs. 107,645,800/: trs prayed for. - 6. The Learned Trial Jutlge erred in law andfact when he disregorded/rejected the experl evidence adducetl bJ: the appellont. - 7. The Learned Trial Judge erred in law andfact when he seemed to tlisbelieve the appellant's evidence beca use he did not hove the opportunity to see the Appellont's witness testify."

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In his written submission, Mr. Blaize Babigumira, learned counsel for the appellant, submitted on grounds 1,2 and 7 together, grounds 4 and ³ separately and grounds 5 and 6 together. I will deal with grounds 1,2, ⁷ together and grounds 4, 6, 5 and 3 separately.

The gist of the learned counsel's submission on grounds 1,2, and 7 is that the leamed trial Judge failed to evaluate the evidence properly. Counsel's submission on that point can be summarised as follows. The way the accident happened, the long period the trial of the case took, consideration of extraneous matters, failure to call Ocaka as witness and failure to appreciate the respondent's duty to maintain the railway line.

Regarding counsel's complaint about how the accident happened, he submitted that the learned trial Judge was wrong to hold that there was no explanation for cause of the traffic jam. The Judge should have believed the testimony of the trailer driver Mohamed Ntanda (PWl) that the driving school vehicle which had suddenly stopped caused the traffic jam. He criticised the learned trial Judge's finding that the trailer was trying to by pass other stationery vehicles infront of it which had stopped in order to let the locomotive pass. He argued that if that was the case the appellant's trailer would have been damaged infront rather than in the middle. Counsel further complained that if the learned Judge had properly evaluated the evidence he would have found that the driver of the locomotive was driving at such a high speed that he could not brake in time to avoid the accident. He submitted that if DWI's evidence is true that the train was pulling I I empty wagons and the same locomotive had stopped when Ocaka came out to stop the vehicles on the road, then the same locomotive should have been able to stop when the appellant's trailer was approaching.

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counsel further submitted that the learned trial Judge should have drawn an adverse inference from the respondent's failure to call ocaka as ^a witness. For this submission counsel relied ii Bukenva & Others ^V ^Ut! ( trtlu (1972 EA 549 md J. K. Putel ^V Speur Molors anda Ltd. Cit,il Appeal No. ⁴of I99l ofthesu re me Co urt. (unreported)

Counsel signs an failure. submitted that the respondent failed in its legal duty to keep road d to rnaintain the place clear and the accident was caused by such On the duties of the respondent, counsel relied on James VS The Comrnissioner of Transport 1958 E. A 313

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counsel lor the respondent supported the leamed trial Judge's finding that there was no traffic jam as alleged by the appellant. He supported the learned trial Judge's evaluation of the evidence. He submitted that damages on the trailer and the position of the trailer after the accident all contradict the testimony of the trailer driver. He refuted the contention that as the locomotive wagons were empty, the driver's failure to stop was due to the fact that the train was going at a very high speed. Counsel submitted that whether the train is empty or not it is heavy and cannot suddenly stop or swerye at a short distance. counsel further submitted that the locomotive driver took all the precautions that were expected of him. It was the respondent's driver who was negligent and did not observe the duty of all drivers in Uganda to slow down and stop at every railway crossing before attempting to go through. with regard to failure to call ocaka, counsel submitted that the respondent was not bound to call him. DW I was enough to prove their case.

In his Judgment the learned triat Judge stated as follows:

,,The trailer man on his part testifietl lhal the driving school vehicle had long crossecl the level crossing and had stoppecl forcing the trailer to lie ocross lhe railway road at the level crossing. I believe the train driver

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as no explanotion n'as given about o trdfrc jam beyond lhe level crossing. It seems lo me more likely the truth that the driving school automobile had stopped before crossing the level crossiig rather than thol il crossed only 16 slop sorrre distance away. There was no explanation why this could have been the case. Il is more tikely true thol the trailer driver had attempled to ignore the vehicles that hod stopped and forced his woy to proceed a head when it found ilself in the woy of the troin.t'

In his evidence in cross examination, Mohamed Ntanda, (pWl) testified

t0 "The traffic jam was caused by the rtriving school vehicle. It stopped suddenly. That is what I lhought,,

According to that testimony, Moharned Ntanda never saw the driving school vehicle stopping suddenly. The appellant's witness gave ^a different version ol what happened. I arn unable to fault the learned trial Judge's finding that there was no explanation for the cause of the traffic jam. In his judgment the leamed trial Judge evaluated the evidence of the two eye witnesses to the accident and the photographs. He found that the account of the locomotive driver ofhow the accident happened was more credible than that of the trailer driver. I am prepared to hold that the trial Judge came to the right conclusion.

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On failure to call Ocaka the trial Judge found that this could not be ^a basis that the plaintiffhad discharged its burden ofproof. I agree. The respondent called DWI the eye witness to prove their case of how the accident happened. There is no number of witnesses in law required to prove any fact unless provided so by law: See section 132 ofl6e Evidence Act (Cap 43 Laws of Uganda.) With due respect to counsel for the appellant Bukenva and Others V Ueanda (Supra) is an authority on the duty of the prosecution to call all meteral witnesses to establish the

truth even where their evidence may be inconsistent and J. K. Patel V Soear Molors Lttl. (Supra) does not lay down a rule that all material or alleye witnesses must be called otherwise on adverse inference is to be drawn.

on the length of the trial period, counsel for the appellant submitted that all the appellant's witnesses except one testified before 2nd May ¹⁹⁹⁶ whereas the respondent's witnesses gave their testimony between 20,h - 23'd September 1999. This length of time, in counsel,s view enabled the respondent to prepare and to controvert the appellant's evidence. This influenced the leamed trial Judge in his assessment of the credibility of the witnesses.

In his judgment, the learned trial Judge said that he was able to see the locomotive driver testify but did nor see the trailer driver testifo. According to counsel the leamed trial Judge based his decision on the demeanour of witnesses which he was not entitled to do because the case was part heard.

In reply, Mr. J. W. Kwesiga conceded that the trial Judge took over a part heard case. However, there was no legal requirement under the circumstances that he should hear the case afresh and none of the parties requested for it or for recalling of any of the witnesses. The leamed trial Judge did not base his decision on the demeanour of witnesses.

In evaluating the evidence of the two eye witnesses to the accident the Ieamed trial Judge said as follows:-

"It seems to me that it is almosr the word of the motor vehicle driver ogainst that of the troin driver. I wos able to see the locomotive driver lestify while I did not see the troiler tlriver testify. I fountl however the troin driver a well organised person who deliveretl the story coherently.

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## He described the slate of the level crossing and the vehicles on the road almosl the same way lhe truiler driver had described them."

The above quotation, in my view, does not indicate that thii leamed trial Judge based his decision on the demeanour of witnesses. What he did was simply to evaluate the evidence and concluded that the train driver was more credible than the trailer driver. I am unable to appreciate counsel's argument that the length of period between the time the appellant's witnesses and the respondent's witnesses was detrimental to the appellant's case. Witnesses testified only about rvhat took place and not what they concocted. On the contrary the respondent's witnesses might have been at a disadvantage due to lapse of time.

On consideration of extraneous rnatters counsel submitted that the learned trial Judge took into consideration extraneous matters which were not before him. Thus he considered that PW I was a careless driver and based his decision on thar.

In his judgrnent the leamed trial Judge said.

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"This court might, without its being a basis for this decision at oll take nolice of an unusually reckless and arrogant mdnner in which trailers of the plointiff ore driven along Port Bell road in Kampola and elsewhere. A credible animation might depict a bottled driver behind the wheels."

The learned trial Judge did not base his decision on that. He clearly stated that it was not the basis of his judgment. I would however say that the above remark was uncalled for.

Grounds 1,2,7, should fail.

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Counsel's complaint in ground 4 is that the trial Judge erred in law and fact when he allowed the respondent to depart from its pleadings.

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Counsel contended that the respondent's written statement of defence and counter claim differed from the evidence of its witness, DWl. The pleadings were that the trailer crushed the locomotive whereas DWI testified that he rammed into the trailer. In counsel's view, it was wrong in law to allow the respondent to depart from its pteadings and prove ^a case it had not pleaded without amending the pleadings. Counsel relied ot'r I nterfre ht Forworlcrs (U) Ltd. VS East African Develo0menl ^I

## ro Bonk (SuDrenrc Court) Civil Attpeal No. 33 of 1993. (Unreported).

Learned counsel for the respondent conceded that a party is bound by its own pleadings. He submitted that the test to be applied in the instant appeal was whether the appellant had a fair notice of what was to be proved and whether there was denial ofjustice by the apparent departure from the pleadings. The court had to decide which of the two parties was negligent. The question ofwho knocked or crashed the other was not the main issue. Both parties agree that the locomotive knocked the trailer and the leamed Judge did not have to decide that because it was not 20 contentlous.

The respondents' pleadings complained of are as follows. In paragraph ³ of the written statement of defence it is pleaded:

"3 That lhe defendanl denies the conlents of paragraph 5 save that she O is the owner of the saitl shunrer engine. It shalt be ave\*ed by lhe defendanrthatitwashisshunterenginewhichwasltitanddamogedhy I h e p I a ⁱntiff s semi-tra il e r- | ^|

And in the counter claim it is pleaded

"7. On or about the 2dh ctay ofJune 1992 between 2'00pm ond 3'00pm ut Kololo Level crossing on Old Port Bell Road, Kampala, the plainliffs motor vehicles M/Benz lrailer head regislration No. Ul4/V 159 and semi trailer UWV 157 crushed tnto the tlefendonts, locomotive 73U17

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causing exlensive damage lo the laller"

The testimony of Katungi Emmanuel (Dwl) the locomotive driver is to the effect that he saw the trailer by passing other vehicles which had stopped at the railway crossing. He tried to brake but he could not because of the weight of the wagons. He stated as follows on Page 47 of the record of proceedings.

,,Then I cotlitletl with the trailer. The semi trailer kerb was trying to fatl on the locomotive. The train hit lhe lrailer

My train continued moving. The troiler fell olI' I hit in the middle at thecomplyingpoint. Icontinuedantlstoppedoheotlafterclearinglhe road" 20

The learned trial Judge considered the arguments ofcounsel on the issue of the respondent's departure from its pleadings and held that he did not want to go into semantics.

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,,According to the lrain tlriver he had released the brukes to let the train move on when the etefendonts trailer moved into his line of motion interceptitrg lhe train which then rammed into it. This court would not like to go i,lto sen antics and is of the view that as lhe trailer seemed to have been in motion as il sought lo cross cleor of the level rail crossittg a collision occurred wherebl'the nose of the locontotive and the moving

# botly of rhe trailer were involvetl. This coultl be described as crushing for want ofbener language." l0

I respectfully agree with the decision of oder J. S. C in Interfreight Fowarders (U) Ltd. V East African Bank (Su ra). referred to by counsel for the appellant. However, the above authority is not on all fours with the present appeal. In that authority the cause of action as pleaded in the plaint and reflected in issues as framed by the parties, was negligence. The learned trial Judge was held to have erred when he based his judgment on a different cause of action of a common carrier which puts strict liability on the carrier for any damage or loss to goods heacceptstocarry. Intheinstantappealtherewasacollisionbetween the respondent's locomotive and the appellant's trailer' The cause of action was negligence and the issues were framed accordingly' There

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was no injustice caused to the appellant' The respondent was allowed to prove a case which was clear from its pleadings, issues framed and evidence adduced. Ground 4 should fail'

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I now tum to ground 6. Counsel's complaint in this ground is that the leamedtrialJudgeerredinlawandinfactwhenherejectedtheexpert evidence of DW2.

The expert witness assessed the damage to the appellant's vehicle. She visited the scene of the accident. She made reports which were admitted in evidence as exhibits Pl, Pl l, Pl11, and PlV. Counsel submitted that her evidence established that there were defects in the construction of the railway siding and that there was over grown vegetation which affected visibility. There were taxi stages which increased the risk to the users of the crossing and as the siding was constructed on a bend it required specialwarningsandprecautions. Thetraindidnothaveexclusive right ofway and therefore it should have stopped when it found that the trailer had crossed.

In reply counsel for the respondent submitted that the leamed trial Judge was right to disregard the evidence of the expert as it had no relevancy to the case. According to counsel the report was subjective and its purpose was to have the appellant compensated and she usurped the role of the court when she wrote:

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" Ugonda Roilways Corporution shoultl fully compensate Uganda Breweries."

Counsel submitted that all the necessaly precautions were taken and &ere is no evidence that the accident was caused by defects in construction of the siding or obstruction llt visibility. Counsel contended that the fundamental question in this case was who caused the accident. The learned trial Judge believed the evidence ofthe eye witnesses ofhow the accident happened in preference to that of the transport consultant which he referred to as academic assertions. The Judge also found that l0 according to the photographs which were exhibited the grass at the road side was cut to a low level and there was a railway crossing sign which had been broken.

I agree with the Judge's finding. The accident was not caused by failure of the respondent to observe the duties to keep the railway crossing signs and the road clear. Although the learned counsel for the appellant put a lot of emphasis on the case Jtmes V The Conntissioner of transDorl (Suprt) and the English authorities quoted therein, I find that the facts in infront of the trailer waiting for the locomotive to cross. The trailer tried This cannot be attributed to the respondent's failure in its duty to install the present appeal are different. There were many stationary vehicles to by pass them all and in the process was knocked by the locomotive.

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O appellanr's driver. warning signals. The coilision was entirely due to the negrigence of the

Ground 6 should fail.

The complaint in ground 5 is that the leamed triar Judge shourd have found for the appellant and not for the respondent and awarded the damages Ug. Shs. lO7,645,800l= prayed for.

In reply counsel for the respondent maintained that the Judge had rightly found that the appellant's driver was guilty of negligence.

^Iagree that the leamed triar Judge properly evaluated the evidence and found that the appellant's driver was guilty of negligence. My holding in grounds 1,2,7, and 6 should dispose off ground 5. Ground 5 should fail.

Ground 3 is that the reamed trial Judge erred in law and in fact to award ug. Shs. 280 million on the respondents counter claim. There was not enough evidence to prove the same by the standard required of proof of special damages.

Counsel contended that DW2 was not a competent witness to give reliable information on the exchange rate and the trial Judge simply awarded Ug. Shs. 280 million without rnqulnng lnto the matter 20 Counsel relied on Usondo Arnerican Insuronce Componv LId VS Phocas Rugonz,u. Suorente Co url Civil ^A 'peol No. l0 of 1992. for the holding that the rate of exchange should be unre rted

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asceftained by oral evidence or certificate frorn Bank officials or other a recognised expefts in currency exchange.

> on the other hand, counsel for the respondent contended that the respondent specifically and sufficiently proved the claim. DW2 made the report Exhibit, Dl, and testified that spare parts, handling charges and labour would cost DM. 400,000 or Uganda Shs. 2g0 rnillion.

I agree with the respondent's submission that DW2 was not cross examined on how he arrived at a figure of Ug. Shs 2g0 million. In my view this was an admission on this point. Besides DW2 was the respondent's Acting General Manager and before then he had held the position of a Mechanical Engineer. He must have been conversant with the rate of exchange of DM which was the currency used to purchase locomotive spares. This case is distinguishable tiom Usanda Americon

Insuronce co. Lttl. vs phocas Ruganzu (suprar where the complainant was a lay man and was not conversant with the rate of exchange of the Zimbabwean dollars to Uganda shillings.

In the result I would dismiss this appeal with costs here and in the court below.

{ Dated at Kampala this ??- Day or .. i|. ::.t \*b\*zooo

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CNLS. C. N. B. Kitumba

## JUSTICE OF APPEAL.

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### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### **CIVIL APPEAL NO.16 OF 2000**

# UGANDA BREWERIES LTD. ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

## **UGANDA RAILWAYS CORPORATION :::::::::::::RESPONDENT**

(Appeal from a judgment of the High Court of Uganda at Kampala (Okumu-Wengi, J) dated 27/10/99 In HCCS No.444 of 1993)

#### HON. JUSTICE C. M. KATO, JA. CORAM: HON. JUSTICE S. G. ENGWAU, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

## JUDGMENT OF C. M. KATO, J. A.

I have had the advantage of reading the judgment of Kitumba, JA. I agree with it. The learned trial judge properly evaluated the evidence and made a correct finding of fact that it was the appellant's driver who was at fault. This was a case which greatly depended on which witness to believe. The judge was right in believing the story as told by the respondent's driver which, in my view, was straight forward.

Since Engwau, JA. also agrees, this appeal is dismissed in terms set out by Kitumba, JA. in her judgment.

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Dated at Kampala this $2.3$ day of $0.16$ be $22000$ . $C. M.$ **JUSTICE OF APPEAL**

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

CORAM: HON. JUSTICE C. M KATO, JA. HON. JUSTICE S. G ENGWAU, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

## CIVIL APPEAL NO. 16 OF 2000

### UGANDA BREWERIES LTD::::::::::::::::::::::::::::::::::::

### **VERSUS**

## UGANDA RAILWAY CORPORATION :::::::::: RESPONDENT

(Appeal from the decision and order of the High Court at Kampala (Okumu-Wengi, J.) dated 27.10.99 in HCCS No. 444 of 1993).

#### JUDGEMENT OF S. G ENGWAU, JA.

I had the advantage of reading in draft the judgment of Kitumba, JA and I agree with her that this appeal be dismissed with costs here and in the court below.

Dated at Kampala this $2.3$ Day of $9.1$ Day of $9.1$ Day of $9.1$ Day of $9.1$ Day of $9.1$ Day of $9.1$ Day of $9.1$ Day of $9.1$ Day of $9.1$ Day of $9.1$ Day of $9.1$ Day of $9.1$ Day of $9.1$ Day of $9.1$ Day of $9.1$

Infused S. G. ENGWAU, JUSTICE OF APPEAL.