Dheyongera v Mutyabule (Civil Appeal 3 of 1985) [1986] UGCA 26 (2 September 1986)

IN THE COURT OF APPEAL

#### AT MENGO

(Coram: Wambuzi, P., Lubogo, Ag. J. A., Odoki, J. A.)

# CIVIL APPEAL NO<3 OF 1985

# BETWEEN

SAMUEL DHEYONGERA APPELLANT

# AND

RESPONDENT CHARIES MUTYABULE ....... (Appeal from a Court of Uganda at Kampala (Mr. dated 14th August, 1984 judgment of the High Kantinti, J)

#### IN

## Civil Suit No>179/83)

#### JUDGMENT OF LUBOGO, AG. J. A.

The appellant filed a civil action in the lower court against the respondent for the recovery of general and special damages for negligence when the respondent's vehicle collided with the appellant's causing considerable damage to it. The appellant also claimed costs and interest at 12% on the decretal amount. The trial judge dismissed the suit on the ground that the appellant had failed to prove his case on a balance of probabilities. Hence this appeal.

respondent's driver drove the respondent's vehicle so carelessly that he collided with the appellant's vehicle at the rear causing extensive damage to the extent of being a complete write off as riously. that caused the accident. a result 'of overturning and that the respondent was liable vica-The respondent's case was that it was not his vehicle The appellant's case, at the trial, was that on 12/2/83 the

The brief facts are that, the appellant himself was driving his motor vehicle registered No. UWT 559 Peugeot Pickup on Iganga/ Bugiri road on 12/2/83, when he reach-'d Buseyi near Nakalama about

2 miles from Iganga town he was involved in an accident. In the vehicle there was a police.escort Ochira (P. W.3) who was seated infront with him, and a turnboy Elliot Saman presumably at the back. At that spot the appellant noticed two trailers travelling from the opposite direction, he switched on his indicators and put out his hand. Then he noticed, in the reflection mirror a lorry coming from behind with its lights on. The appellant went passed the first trailer, but just as he was about to pass the second trailer he heard a bang on his vehicle from behind. He noticed that the lorry was travelling fast. The appellant sustained a cut wound on his left finger and a wound at the back of the head. The accident was reported at the Iganga Police Station and policemen came to the scene; one of them took measurements and the other policemen accompanied the trailer to the police station. The appellant was taken to Bugiri Hospital for treatment. Exh. P.l was put in as his medical report. The police sketch plan Exh. P.5t the abstract of particulars of the accident of both vehicles, UWT 559 and the lorry No. UWO 384 are found on pages 44 - 47 of the record as exhibits. It was about 4.00 p.m.

In his testimony the appellant said that he was knocked by the lorry at the rear and that caused the accident. This testimony was corroborated by Ochira P. W.3\* On the other hand the driver of the lorry UWO 384 stated in his evidence that he was following the appellant's vehicle when he noticed a trailer coming from the opposite direction, the trailer crossed the road but the appellant could not brake in time, he hit the trailer. The driver of the lorry swerved in order to avoid hitting it, nevertheless the pickup hit tha lorry on the driver's side. He reported the matter at the police station. On arrival at the scene the pickup had been trapped by the trailer and it was pulled out. They were asked to take the lorry and the trailer to the police station at Iganga. The policemen went with the trailer, but on arrival at the police

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station the trailer had vanished. Most of the evidence of the driver (D. W.2) was corroborated in. material particulars by D. W. 5 who was seated next to the driver when the accident happened, with one exception that he was not present when the police arrived at the scene, he had gone to inform the respondent of the accident. The respondent called an expert, an automative engineer and transport consultant Tebabiganya (D.wA) to appraise the damage on UWT 559 and to give expert evidence on the reports by the police. We shall look at his evidence in due course.

In his memorandum of appeal, the appellant attacked the trial judge's decision on three grounds. The first ground being that since the basis of the plaintiff's claim was that the defendant's vehicle knocked plaintiff's vehicle from the rear causing it to (11) mentioned by the plaintiff in .his examination in chief. Mr. Kayondo S. C. for the appellant submitted that it was not necessary to aver in the plaint that the vehicle was knocked at the rear and overturned, because that was a matter for evidence, and this was stated by the appellant in his testimony. He said further that it was pleaded in paragraph 7 of the amended plaint. Para. 7 however, states among other things, eoverturn, this fact ought to have been (1) pleaded in the plaint

> "he-caused the same to knock the plaintiff's said motor vehicle damaging it beyond repair

In his submission Egonda-Ntende, counsel for the respondent, said that the overturning was a material fact which should have been pleaded; it was also a fact in issue. He\* referred to us s. J(l) of the Evidence Act in which ''fact in issue" is defined, and 0.6(1) of the Civil procedure Rules.

0.6(1) of C. P. R. is precise. It reads:

•'Every pleading shall contain , and contain only, a statement in concise form of the material facts on which the party pleading relies for claim or defence, as the case.may' be, but not evidence by which they are proved,

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A

and shall, when necessary, be divided into paragraphs ............ . "

Rule (1) of the Order makes very clear that evidence to prove the the defence, Then what is the essence of pleading and a material fact as against evidence to prove that material fact? Counsel for the respondent cited Phillips QBD 127. In this English case the plaintiff filed an action for nature of the deeds and documents upon which he relied in deducing his title from the person under whom he claimed.. Bramwell LJ while referring to the rules of procedure in England he had this to say, v. Phillips and others (1878 - 1879) material fact should not be included in the statement of claim or the recovery of land, the statement of claim did not allege the

> "The object of the rules is three fold. It is that the plaintiff may state what his case is for the information of the defendant, and that the plaintiff may be tied down to it and not spring a netf case on the defendant; secondly, that the defendant may be at liberty to say that the statement is not sufficient in point of law and to raise the point of demurrer; and'thirdly, that the defen ant, instead of being driven to deny everything by an ambiguos and uncertain statement involving conclusions of the law as well as actual facts, and so going down to try an expensive issue, may be at liberty to single out any one statement and to answer it."

the respondent was likely to meet at the hearing. The plaint in paragraph 7 merely refers to without a word to "overturning". In the same cited, authority Phillips v. Phillips & Others (supra) the distinction between material fact on the party pleading relies and the evidence to be adduced to prove the material fact was dealt with by Brett L. J. when he said. In this appeal we arfe more concerned with the first object in that the appellant did not give precise information as t-o the case "knocking"

> "The distinction is taken in the very rule\* • itself, between the facts on which the party relies and the evidence to prove those facts. Erie C. J. expressed it in this way. He said, there were facts the facts which ought to be proved, and they were different from the evidence which was adduced to prove t-.ose facts

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. ;The facts which ought to be stated are the material facts on which the party pleading relies."

From the above quoted authority it is shown that there is\* a distinction between a meterial fact and evidence to be adduced to prove that material fact. However, in a more recent authority no hard and fast line is to be drawn between a material fact and a material particular. partakes of the nature of a material particular. In the result that where a material fact is not pleaded the claim would be struck out , the court would have no discretion in the matter as it would have where a material particular has not been pleaded. In Bruce v. Qdhams Press Ltd. (1935)1 KB 697 the question of material fact and particulars was discussed Slesser L. J. had this to say, It seems in the present case that ''overturning"

> "Consequently, in strictness particulars cannot cure a bad statement of claim. But in practice it is difficult to distinguish between a "material fact" and a "part cular" piece of information which is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping."

In the present case the omission of the word in the plaint or in examination in chief the case. The basis of the action was negligence. "overturning" was not the reason for dismissing

In his judgment the trial judge had this to say,

"0f the two versions, I am ef the opinion that the defendant's one, on the balance of probabilities, is the more likely one. I agree with the submissions of Mr. Egonda-Ntende counsel for the 2nd defendant, that the basis of this claim is that the defendant's vehicle knocked the plaintiff's vehicle and overturned. Yet this is not stated in the plaint. Also this was not mentioned by the plaintiff in his examination in chief."

It is my view that, the trial judge did take into account all the evidence of- both parties, before he came to his decision. The decision was not solely based cn the fact that the basic

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cause of knocking and the eventual overturning was not pleaded in the plaint but on the whole evidence in the case. The expression "balance of probability" in my opinion, connates that after weighing all evidence in the case for both parties and taking into account all the surrounding circumstances one version outweighs the other. The 2nd leg of this ground does not merit comment in view of the above. So on this ground the appellant fails. The second ground of appeal is that the trial judge relied on the theoratical evidence of D. W.4 which evidence was based on the photographer who did not give evidence and disregarded the evidence of independent evidence of P. W.3 a police officer.

It is not known how the photographs found their way on the file. The record does not indicate how they came to be there. They were not marked as exhibtis. For that reason I shall ignore them and will not take them into consideration. However, D. W.4's evidence was not solely based on the photographs. There were exhibits of the abstract of particulars of the acci ent for both vehicles and the police sketch plan all found on pages $44 - 47$ of the record. D. W.4 was invited to give an opinion on those reports. These reports were not challenged in spite of the fact that they were not marked in the usual way and I 'ake it that they were put in the normal way. D. W.4 inspected the accident vehicle No. UTW 559 and gave his report Exh. D.1. In his evidence he said,

> "All the damaged parts were given values, labour was computed, painting and welding were also included ...... I have itemised all those. There is an item which appeared in the police report i.e. the gearbox, I have not included it in my report because it is a remote item. The engine according to the police report was not damaged. So it would<br>have been rare for the damage to be caused to the gearbox. The police report does not include the bumper bar, but I have included it because it absorbed the incursion."

The Police report on the damage sustained by UWT 557 was as follows; Windscreen smashed, Bonnet dented, both mudguards damaged,

$...$ /7

$-6 -$

both drivers and offside doors broken, headlights smashed, indicators smashed, radiator damaged, fan and gearbox damaged, window glasses, side mirrors and suspension damaged. According to the police report of the damage it appears that most of the damage, if not all, was received on the front part of UTW 559 and nothing at all at the back. In cross examination D.'V\*4 said;

> "All I have said is professional opinion based from the evidence - I have had. It is possible to come to a wrong conclusion if one looked at a wrong evidence. I would have preferred to see the vehicle rather than photos. This inspection was supplemented by the police report. I would have expected to see the skid marks before A. It somrnersaulted on the ground even once then the rack would have been damaged. The front bumper bar was not mentioned in the police report. This pickup hit an obstacle in front of it."

It is abundantly clear that D. W.4 formed his opinion from personal examination of UTW 559 helped by independent police report.

The police report of the damage on vehicle No, UWO showed a dent on the near side board. It appears that the police report on the damage of both vehicles and the observations of D. W.4 give credence to the evidence of D. W.2, the driver when he asserted in evidence that the pickup ran into the•trailer as evidenced by the frontal damage on it. If there was a rear impact on the pickup by the lorry loaded with over 100 bags of coffee would have told on the front part of it. The dent received on the near side board of the lorry was the result of the impact of the pickup with the trailer. So it is not true to say that the photographs influenced the opinion of D. W.4. The second ground also fails.

The third ground of appeal was the trial judge failed to address himself properly to the issues and the evidence in general and thus made erroneous findings which culminated in the dismissal of the plaintiff.'s claim. There were five issues upon which the trial judge was called upon .to adjudicate and make his findings.

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Learned counsel did not cateforically state which issue or evidence the trial judge failed to address himself as to cu^ninate in the dismissal of the plaint. Generally, however, learned counsel referred to D. V/.4's evidence which was accepted by the trial judge and the evidence of D. U. J in chief and the police statement he made at the police station. The only pertinent criticism by D. W.4 of the sketch plan made by P. VJ.3 was that the skid marks would have been at a point before A on the sketch plan and that the pickup would have rested beyond 18 meters from A- In any case this was not of vital importance to the whole evidence adduced by both sides. On the contrary the police reports supported the proposition that the impact was a frontal one. and which I do not intend to review as I have done so already. He also referred to the evidence of P.'7»J who made the sketch plan

It is quite obvious that the frontal impact pushed the pickup backwards so as to be knocked by the lorry as it did so. The proposition is supported by the wound at the back of the head of the appellant which in all probability was the result of the impact at the front when he jerked his head backwards. I do not see any merit in this ground of appeal.

I would accordingily dismiss this appeal with costs.

D. L. K. Lubogo, AG. JUSTICE OF APPEAL.

/jnk

# IN THE COURT OF APPEAL

## AT MENGO

( Coram;: Wambuzi, C. J. Lubogo, Ag. J-A Odoki, J. A»)

CIVIL APPEAL NO. 3 OF 198?

BETWEEN

SAMUEL DHEYONGERA APPELLANT AND

CHARLES MUTYABULE RESPONDENT

(Appeal from judgment and decree of the High Court of Uganda at Kampala (Kantingi, J.)dated 14th August 1984-

in

High Court Civil Suit No. 179 of 198?

JUDGMENT OF WAMBUZI, C. J.

I have had the benefit of reading in draft the judgment prepared by Lubogo, Ag. J. A\* I agree that this appeal be dismissed but for somewhat different considerations. The learned Ag. Justice of Appeal sets out the facts in his judgment and I will not repeat them.

There are three grounds of appeal. The first is to the effect that the learned trial judge erred in finding that the appellant's case had not been proved because of the appellant's failure to pleqd or mention in his Examination-in-Chief the fact that the respondent's vehicle knocked the appellant's vehicle from th. rear causing it to overturn, this fact being the basis of the appellant's claim. On this point the learned trial judge considered both the case for the appellant, who was the plaintiff, and the respondent, who was the second #### defendant, and said,

¥

"Of the two versions, <sup>I</sup> am of . . opinion that the defendant's driver's one, on a balance of probabilities, is the more likely one. I agree with the submissions of Mr.. Egonda-Ntende, counsel for the 2nd defendant, that the basis of this claim is that the defendant's vehicle knocked the plaintiff's vehicle and it overturned. Yet this is not stated in the plaint. Also this was not mentioned by the' plaintiff in his examination in chief. The plaintiff only referred to it during cross-examination 1/ - \* XB . f '■ 1.7 by Dr. Byamugisha who was then counsel for the 1st defendant. This is very odd, because the plaintiff's vehicle was damaged according to him, as a result of overturning."

I think, with respect to the learned trial judge, that this was rather unfortunate wording. This was a claim in negligence which is quite clearly pleaded in paragraph 7 of the plaint. The paragraph states that the respondent drove his motor vehicle so negligently that he caused the same to .knock the appellant's vehicle damaging it beyond repair. Given were nine particulars of negligence which include to other users of the road, faicontrol his vehicle so as to avoid the accident. Overturning of the vehicle is not the basis of the claim but rather the result of the vehicle It may be a material ined to agree with Mr. Kayondo, S. C. who appeared for the appellant that the fact of over-turning of the appellant' • the damage\* to the car complained of was caused, which s vehicle is part of the evidence of negligence ef how driving without due-care lure to brake, manoeuvre or being knocked negligently as alleged. particular relating to the extent of the damage caused but is not the basis of the claim. To this extent I am incl-

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need not have been pleaded. However, the fact that the appellant's car allegedly overturned when it was knocked by the respondent's vehicle was a material fact in establishing the extent of the damage. It is, therefore, strange that this fact was not mentioned in the plaint or in the respondent's evidence-in-chief. Language apart I have no doubt that this was what the learned trial judge had in mind. He described the omission as odd. He was considering the different versions of the appellant and the respondent as to what happened and was entitled in accepting one version as more credible than the other to refer to the pleadings and the evidence as he did.

As regards the second ground of appeal the appellant complained that the evidence of D. W.4 was theoretical based on examination of photographs, the police report and sketch plan of the scene of the accident. I also agree that the evidence of D. W.4 based on the photographs must be disregarded as there is no evidence of how they were taken or produced in evidence. In more important respects, however, the evidence of D. W.4 is supported by the police report which was not challenged. nee of this witness were to be disregarded, there is ample evidence lar the damage to the front and side of the appellant's vehicle consistent with a crash into another vehicle and the absence of any damage to the back of the appellant's vehicle or the front of the respondent's vehicle to support the respondent's version of what happened. I also agree that P. W. J, a police officer who was escorting the respondent's vehicle, cannot be described as an independent witness. He was riding in the appellant's vehicle. apparently working at the time in the interests of the appellant. To that extent he was no more independent than the appellant himself. to support the version accepted by the learned trial judge in the police report regarding the damage to the two vehicles, in particu-That, notwithstanding, even if the evide-

The third ground of appeal is that the learned trial judge

A <sup>J</sup>

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failed to address himself properly to the issues and evidence in general and thus made erroneous findings which culminated in the dismissal" of the plaintiff's claim. Like my brother Lubogo, Ag\* J. A. I find this ground to be vague. However, as regards to the complaint made by Mr. Kayondo, S. C. against D. V/.3 who had allegedly made a police statement inconsistent with his evidence at the trial, the proof of a previous statement merely relates to the credibility of the witness and not to the truthfulness or otherwise of the previous statement. If therefore the learned trial judge had found D. W. J to be an unreliable witness the burden of proof was still on the appellant to prove his case. The learned trial judge found that this burden had not been discharged. On the evidence I am unable to say that he was wrong.

As Odoki, J. A. agrees with the judgment of Lubogo, Ag. J. A. there will be an order in the terms proposed by the learned AG\* J. A.

DATED at Mengo this 2nd day of September, 1986.

S. W. W. Wambuzi, CHIEF - JUSTICE.

### IN THE COURT OF APPEAL

## AT MENGO

(CORAM: WAMBUZI C. J., LUBOGO AG. J. A & ODOKI J. A)

CIVIL APPEAL NO. 3 OF 1985

#### BETWEEN

SAMUEL DHEYONGERA..................... APPELLANT

$AND$

CHARLES MUTYABULE.........................

(Appeal from Judgment and order of the High Court of Uganda at Kampala(Kantinti J.) dated 14th August 1984

in

Civil suit No. 179 of 1983)

## JUDGMENT OF ODOKI J. A

I have had the opportunity of reading in draft the judgment prepared by Lubogo Ag. J. A., and I agree with it.

Dated at Mengo this 2nd day of Sept. 1986

# B. J. Odoki JUSTICE OF APPEAL

Mr. Womutuba Alexander of M/S Kayondo & Co., Advocates for the Appellant.

Mr. Egonda- Ntende of M/S Egonda-Ntende and Tuyingire Advocates for the Respondent.

L certify that this is a copy of the original true M. K. Kalanda Registrar/Court of Appeal, Mengo. IN T:.'E COUNT GF A PEAL

AT MSNGO

(Corum; Wambuzi, G. J., Lubogo, Ag. J. A., Odoki, J. A.)

CIVIL APPEAL NO.3 OF 1985

<sup>B</sup> <sup>E</sup> I <sup>W</sup> <sup>E</sup> <sup>E</sup> <sup>N</sup>

SAMUEL DILEYONGERA APPELLANT

AND

CHARLES EOTYABULE RESPONDENT

(Appeal from judgment and decree of the High Court of Uganda at Kampala (Kantinti, J.) dated 14 August 1984

in

High Court Civil Suit No. 179 of 1983

JUDC. WFIT OF WATU/. I, U. J.

I have had the benefit of reading in draft the judgmont prepared by Lubogo, Ag. J. A. I agree that this appeal .be dismissed but for some'. Lat different considerations. The learned Ag. Justice of Ap >eal sets out the facts in his judgment and I will not repeat them.

There are three grounds of appeal. The first is to the effect that the learned trial judge erred in finding that the appellant's case had not been proved because of the appellant's failure to plead or mention in bis Lxamination-in-Chief the fact that the respondent's vehicle knocked the appellant's vehicle from the rear causing it to overturn, this fact being the basis of the appellant's claim. Cn this point the learned

trial judge considered both the case for the appellant, who was the plaintiff, and the respondent, who was the second

. 2 .

defendant, and said.

"Of the two versions, I am of opinion that the defendant's driver's one, on a balance of probabilities, is the more<br>likely one. I agree with the submissions of Mr. Egonda-Ntende, counsel for the 2nd defendant. that the bases of this claim is that the defendant's vehicle knocked the plaintiff's vehicle and it overturned. Yet this is not stated in the plaint. Also this was not mentioned by the plaintiff in his examination in chief. The plaintiff only<br>referred to it during crossexamination by Dr. Byamugisha who was then counsel for the 1st This is very odd. defendant. because the plaintiff's vehicle was damaged according to him, as a result of overturning."

I think, with respect to the learned trial judge, that this was rather unfortunate wording. This was a claim in negligence which is quite clearly pleaded in paragraph 7 of the plaint. The paragraph states that the respondent drove his motor vehicle so negligently that he caused the same to knock the appellant's vehicle damaging it beyond repair. Given were nine particulars of negligence which include driving without due care to other users of the road, failure to brake, manoeuvre or control his vehicle so as to avoid the accident. Overturning of the vehicle is not the basis of the claim but rather the result of the vehicle being knocked negligently as alleged. It may be a material particular relating 🐆 🐫 to the extent of the damage caused but is not the basis of the To this extent I am inclined to agree with Mr. Kayondo, claim. S. C. who appeared for the appellant that the fact of over-

turning of the appellant's vehicle is part of the evidence of negligence of how the damage to the car complained of was caused, which need not have been pleaded. However, the fact that the appellant's car allegedly overturned when it was knocked by the respondent's vehicle was a material fact in establishing the extent of the damage. It is, therefore, strange that this fact was not mentioned in the plaint or in the respondent's evidence-in-chief. Language apart I have no doubt that this was what the learned trial Judge had in mind. He described the omission as odd. He was considering the different versions of the appellant and the respondent as to what happened and was entitled in accepting one version as more credible than the other to. refer to the pleadings and the evidence as he did.

As regards the second ground of appeal .the appellant complained that the evidence of D. W.4 was theoretical based on examination of photographs, the police report and sketch plan of the scone of the accident. I also agree that the evidence of D. W.4 based on the photographs must be disregarded es there is no evidence of how they were taken or produced in evidence. In more important respects, however, the evidence of D. W.4 is supported by the police report which was not challeaped. That, notwithstanding, even if the evidence of this witness were to be disregarded, there is ample evidence to support the version accepted by the learned trial judge in the police report regarding the damage to the two vehicles, •

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in particular the damage to the front and side of the appellant's vehicle consistent vdth a crash into another vehicle and the absence of any damage to the back of the appellant's vehicle or the front of the respondent's vehicle to support the respondent's version of what happened. I also agree that P. W.3, a police officer who was escorting the respondent's He was riding in the appellant's vehicle apparently working at the time in the interests of the appellant. To that extent he was no more independent than the appellant himself. vehicle, cannot be described as an independent witness.

The third ground of appeal is that the learned trial judge failed to address himself properly to thd issues and evidence in general and thus made ei'roneous findings which culminated in the dismissal of the plaintiff's claim. Like my brother Lubogo, Ag. J. A. I find this ground to be vague. However, as regards to the complaint made by Mr. Kayondo, S. C. against D. W. J who had allegedly made a police statement inconsistent with his evidence at the trial, the proof of a previous statement merely relates to the credibility of the witness and not to the tiuthfulness or otherwise of the previous statement. If therefore the learned trial judge had found D. W.3 to be an unreliable witness the burden of proof was still on the appellant to prove his case. The learned trial judge found that this burden bad not been discharged. On the evidence I am unable to say that he was wrong.

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As Gdoki, J. A. agrees with the Judgment of Lubogo Ag. J. A. there will be an order in the terms proposed by the learned $A_E. \ \ J. A.$

Dated at Mengo this....................................

S. V. V. BUZI<br>CHILF JU. TICE