Kalubala v Transocean Uganda Limited (Civil Appeal 22 of 1999) [1999] UGCA 47 (21 October 1999)

Full Case Text

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

## **CORAM: HON. MR. JUSTICE G. M. OKELLO, J. A. HON. MR. JUSTICE A. TWINOMUJUNI, J. A. HON. LADY JUSTICE C. N. B. KITUMBA, J. A.**

# **CIVIL APPEAL NO. 22 OF 1999**

#### **BETWEEN**

### **MOHAMED HASSIR KALUBALA** ;APPELLANT

# AND

**TRANSOCEAN (U) LTD** RESPONDENT

*(Appeal arisingfrom the decision ofthe High Court (Mukanza J.) delivered on 30/6/98, whereby he dismissed the Plaintiff's suit).*

#### **JUDGMENT OF G. M. OKELLO, J. A.**

This is an appeal against the decision of the High Court (Mukanza J.) delivered on 30/6/98 whereby he dismissed the Plaintiffs suit (HCCS No.940/90)

The appellant had brought the suit in the High Court under the Law Reform Miscellaneous Provisions Act (Cap 74) for the benefit of members of the family of Sophia Nakityo who was on 10/2/90 knocked down and killed by the rsespondent's motor vehicle of registration No. UXM 127. In the suit, the appellant sought special and general damages arising from the death of the deceased who was his mother. It was alleged that the accident was caused by the negligence of one Ibrahim

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Mayembe, a driver/servant or agent ofthe respondent acting in the course of his employment.

At the trial, the appellant called three witnesses including himself while the respondent called no evidence. Four issues were framed as follows:-

- (1) whether the plaintiff has locus standi to bring this suit, - (2) whether the accident did occur as alleged, - (3) whether the accident was caused by negligence of the defendant's servant, and, - (4) whether the defendant is vicariously liable.

The trial judge found all the above issues in the affirmative but dismissed the suit on the grounds that:-

- (a) the plaintiff has failed to prove that he was himself also a dependant ofthe deceased, and; - (b) he failed to parade in court the named dependants.

Aggrieved by that decision, the appellant instituted this appeal. There are nine grounds of appeal namely:-

> (1) the learned trial judge erred in fact and law when, after rightly finding that the plaintiff/appellant had proved his case against the defendant/respondent, he failed to award compensation and damages to the dependants and the plaintiff respectively,

- (2) the learned trial judge erred in fact and law when he held that the children were not introduced before court whereas all the five children/dependants were present per the admitted and unchallenged evidence of PW1 and PW2 and therefore came to a in court as wrong conclusion that the children were not introduced, - (3) in the alternative but without prejudice to the contents of ground 2 above, the learned trial judge erred in fact and law when, after he had admitted the evidence of PW1 and PW2 that the children were in court and in fact after he had taken their particulars, he ignored and neglected to request the children/dependants of the deceased to stand so that he could see them and hence came to a wrong conclusion that the children were not introduced before court whereas they were produced, - (4) court one by one although they were actually present, in the other alternative but without prejudice to ground 3 thereof, the learned trial judge erred in fact and law when he denied compensation to the dependants due to counsel's omission not to introduce the children to - (5) the learned trial judge erred both in law and fact when he denied the children/dependants compensation on the ground that they were not introduced to court whereas the plaintiff/appellant had discharged a legal burden of producing the children in court,

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- (6) the not the the learned trial judge erred in fact and law when he failed to award special damages to plaintiff/appellant on the ground that he had produced receipts whereas, despite the fact that plaintiff/appellant had pleaded and proved the said damages in evidence which was not challenged, - (7) that the learned trial judge erred in fact and law when he exercised justice by giving undue regard to technicalities in deciding the case and consequently reached an unfair and unjust decision by denying the plaintiff and the dependants substantial justice, - (8) the learned trial judge ought to have found as a fact that:- - (a) the deceased's children, the respondent did not adduce any evidence or at all to contradict the fact of the existence of - (b) The fact of the deceased's children being present in court was proved by two witnesses (PW1 and PW2) and was not contradicted by the respondent/defendant, - (c) as a court of Justice, the omission of counsel if at all it was made, not to introduce the children to court, should not have been blamed on the

L **r** plaintiff and the dependants children to the extent of denying them compensation when the plaintiff/appellant had proved his case and all other legal requirements had been satisfied,

- (d) the plaintiff and the deceased's dependant children were entitled to remedies prayed for, and - **(e)** after PW2 had testified that the children were in court, the learned judge would, if he wanted to look at them, have requested them to stand up, and - (9) the learned trial judge erred in law and facts when he failed to award the reliefs prayed for by the appellant after rightly finding that the appellant had proved his case on all the issues.

There was also a cross appeal on the following two grounds:-

- (1) that the learned trial judge erred in law and on the facts when he held that the respondent was vicariously liable for the negligence of the driver of the motor vehicle No. UXM 127, - (2) that the learned trial judge exercised wrong principles in his assessment and calculation of damages and as such erred in law when he came to a figure of 23,600,000/= as the damages he would award if the respondent had been produced in Court.

At the hearing, Mr. Muhimbura, learned counsel for the appellant, argued grounds 1, 2, 3, and 5 of the main appeal together. His main criticism in these grounds was directed to the trial judge's refusal to award general damages to the dependants on the ground that they were not produced in court. The learned judge relied in that decision on *Hadija Nakibuka Vs The Attorney General^ Civil Appeal No. 11 of 1993; (Supreme Court) (unreported).* In both cases it was held that where the dependants and their particulars were not produced in court, no award of damages should be given to them unless the court was satisfied with the explanation regarding the failure. Mr. Muhimbura submitted that the holding in those cases was not applicable to the facts ofthe instant case. His reasons were that unlike in those cases, the dependants in this case were brought to court though not paraded and that their particulars were given in the plaint in compliance with section 10 of the Law Reform Miscellaneous Provisions Act.

Mr. Paul Palia Kiapi, learned Counsel for the respondent, replied that Mohamed Nasim Kalibala (PW1) who was the main witness made no reference to the children dependants in his evidence and made no effort to produce them in court. He added that even Catherine Nabweteme (PW2) referred to the dependants only in cross-examination when she answered that she knew all the children of the deceased and that they were "here". Learned counsel argued that the word 'here' used by the witness was vague as it could not necessarily mean that the dependants were in court then. He submitted that the effect of failure to produce the dependants in court was the same with the effect of failure to produce a documentary evidence in one's possession.

purchase of a coffin, transporting the body of the deceased to burial site and feeding of mourners. The trial judge refused to award that claim because the appellant did not produce receipts supporting the expenditure. Mr. Kiapi, rightly in my view, conceded that the trial judge was wrong in refusing to award those obvious damages. These are foreseeable expenditures consequent upon death. A person losing a relative is liable to incur such expenditures. I think that the appellant should have been awarded the claim even without receipts.

In *Christopher Kiggundu and Daniel Ssentongo Vs. Uganda Transport Co. (1975) Ltd., civil Appeal No, 3 of 1993,* the 1st appellant, a small produce buyer, was proceeding to Lira to buy groundnuts. He had 200,000/= on him for the purpose. That money got lost when he was involved in an accident caused by the negligence of the driver/servant of Uganda Transport Co. (1975) Ltd. He claimed that amount as Special Damages. On appeal Manyindo DCJ, held that "that was a foreseeable loss as it was common in this Country for victims of motor accident to be stripped of their cash and other properties by wrong elements especially while the victims are unconscious." This ground also would succeed.

Ground 7 and 8 were also sufficiently dealt with when considering grounds 1, 2, 3, and 5.

The next is ground 9. The appellant's complaint here was that the trial judge was wrong when he refused to award to the appellant the reliefs sought after rightly finding that the appellant had proved his case against the respondent. The trial judge found that the appellant had failed to prove his dependency. Mr. Muhimbura argued that there was evidence that the appellant had lost his sight and was already depended on the deceased. He submitted that on this evidence, the trial judge ought to have found that the appellant had proved his dependency.

Mr. Kiapi's reply was that the trial judge was justified in his refusal because the appellant was not named in the plaint as a dependant and had failed to prove his dependency.

Section 8 of the Law Reform (Miscellaneous Provisions Act) provides that:-

> "every action brought under the provisions of Section 7 of this Act shall be for the benefit of the members ofthe family of the person whose death has been so caused, and shall be brought either by and in the name of the executor or administrator of the person deceased or by and in the name or names of all or any of the members (if more than one) of the family ofthe person deceased."

The appellant brought this suit in his name as a member of the family (son) ofthe deceased. The persons for whose benefit the suit was brought were named in paragraph 5 ofthe amended plaint which reads:-

> "That by the time the said deceased person died she was aged 50 years old and a trader dealing in buying and selling agricultural produce. The aforesaid person left behind her family in which five members were of school going age and another wholly dependant on her income for support and that her death deprived them of the support. The deceased used

to earn Shs. 140,000/= per month and this money was being used to support the said dependants.

#### **Particulars of Dependants**

- (a) Ibrahim Nassir aged 15 years. - (b) Mohamed Nassir aged 14 years. - (c) Sarah Nassir aged 13 years. - (d) Faizal Nassir aged 11 years. - (e) Hawa Nassir aged 10 years. - (f) Aziz Babu aged 3 years."

The appellant was not named as one of the dependants of the deceased. He gave evidence as PW1 but never stated that he was a dependant ofthe deceased. The evidence which Mr. Muhimbura referred to as proving his dependency reads

> "I was a driver before I lost my sight but I am no longer on job."

In my view that evidence is not enough to prove the appellant's dependency on the deceased. I am fortified in this view by the evidence ofthe appellant in cross-examination when he said:-

> "Yes my mother used to earn shillings 140,000/=. I was in partnership with her but after the sales she used to bring the money and I counted the same."

That piece of evidence shows that the appellant was not a dependant of the deceased. He was in partnership with her in that business of produce sale. For the aforesaid reasons, the trial judge was right in finding that **€**

appellant had not proved his dependency. He was accordingly rightly denied damages. This ground would therefore fail.

I now turn to the cross appeal. The first complaint in the cross appeal was that the trial judge was wrong in holding that the respondent was vicariously liable for the accident involving it's motor vehicle No. UXM 127. Mr. Kiapi argued that it was pleaded that the driver of that vehicle at the material time was Ibrahim Mayembe but there was no evidence to prove that he was infact the one driving the vehicle at the material time and that he was the respondent's employee acting in the course of his employment. He submitted that in the absence of such proof, the trial judge should have dismissed the suit.

Mr. Muhimbura conceded that there was neither evidence to prove that Mayembe was the one driving the motor vehicle at the material time nor that he was the employee of the respondent acting in the course of his employment. Counsel submitted however, that the ownership of the motor vehicle was prima facie evidence that it was being driven by its owner or his servant. That would shift the burden to the respondent to rebut the prima facie evidence. It was his view that, as the respondent led no evidence in rebuttal, the trial judge was right in finding the respondent vicariously liable.

The trial judge dealt with the point in this way:-

"However, the fact of ownership of the motor vehicle is prima facie evidence that the motor vehicle at the material time was being driven by the owner or by his servant. See Patel and another **Reported Kenya Law report** page 8 **produced in the Eastern African** who caused the accident at the material time (sic) was negligent and the servant of Transocean (U) Ltd. And as such Transocean the defendant vicariously liable for his acts (sic) the accident."

car was his servant or agent or was acting within the scope of a servant's or agent's authority. The Country Court Judge held that there was no evidence that the motor-car was being driven by the defendant's servant or agent and withdrew the case from the jury and entered judgment for the defendant. The case which the learned trial judge relied on is a Kenyan case of *J. M. Patel and Another Vs T. K, TANDREE and another, CC 44/1935 (Mombasa).* This is a High Court decision. However, In *Banard Vs Sully (1931) 47 TLR 557,* the plaintiff claimed damages for alleged negligence of the defendant" servant or agent in the driving of the defendant" motor-car. The defendant denied that the driver ofthe motor-

On appeal to a Divisional Court of the King's Bench, Lord Justice Scrutton who delivered the judgment ofthe court said:-

> "No doubt, sometimes motor-cars were being driven by persons who were not the owners nor the servants or agents of the owners. As illustrations of that, there were the numerous prosecutions for joy riding, and there were also the cases where chauffeurs drove their employers' motorcars for their own private folly. But, apart from authority, the more usual fact was that a motor-car was driven by the owner or the servant or agent of the owner, and therefore the fact of ownership was some evidence fit to go to the jury that

at the material time the motor-car was being driven by the owner of it or by his servant or agent. But this was evidence which was liable to be rebutted by proof of the actual fact." (Emphasis added).

They allowed the appeal.

The import of that case is that once the ownership of the vehicle which caused the accident is established, that is a prima facie evidence that the vehicle was at the material time being driven by its owner or by his servant. This is because motor-vehicles are usually driven by their owners or by the servants or agents of their owners. The prima facie evidence is a rebuttable one. It is up to the defendant to rebut it by evidence showing the actual fact - whether the vehicle was being driven by its owner or by a stranger. This is a fact within the knowledge of the owner of the vehicle. I respectfully agree with the principle in that case and I adopt it.

In the instant case, ownership of the vehicle UXM 127, established as belonging to the respondent. The respondent led no evidence to rebut the prima facie evidence that the vehicle was being driven by its owner or his agent. In that circumstance, I think that the trial judge was justified to find the respondent vicariously liable. For those reasons this ground of cross appeal would fail. was well

Finally, ground 2 complained about the principle used by the trial judge in assessing the general damages he would have awarded to the dependants. Mr. Kiapi criticised particularly the multiplier of 20 which the trial judge used.

Mr- Muhimbura rightly in my view, conceded that the multiplier of 20 which the trial judge used was wrong and he wondered how he arrived at it.

The trial judge dealt with the issue in this way:-

'As per the principle in this case it is now generally accepted that the normal working life expectancy in Uganda is 50-55 years and it was held that for a professional man like an advocate would be likely to work up to the age of 60 years.

Since the deceased was only aged 50 years she had therefore 5 years expected working life. But taking into account the un certainties of life, the appropriate multiplier in this case would be 3 years. This would bring the total award to shillings 1,680,000/= x 3 i.e. 4,880,000/=. The total lost dependency or benefit is calculated by multiplying the annual lost benefit by the multiplier that is 1,680,000/= x 20 = 23,600,000/=."

The trial judge had in mind the right principle for determining the multiplier but got confused somewhere. It is well established now by authorities that a multiplier is the expected remaining working life of the deceased less uncertainties of life. See *Kampala Aerated Water Co. Ltd. Vs G. R. Kassam (1961) EA 129; B. A. T. (U) Ltd. Vs Selestino Mushangore, Civil Appeal No. 26 of 1996, Supreme Court (unreported).* I think the figure of 3 which the trial judge arrived at is the most realistic one in this case. That multiplier would be multiplied by the multiplicand to determine the total lost dependency. A multiplicand is the annual dependency; the amount which the deceased used for the benefit of his dependants annually.

In the instant case the evidence revealed that she used 140,000/- per month for the benefit of her dependants. The annual amount of dependency in this case would be 140,000/= x 12 =1,540,000/=. The total lost dependency would be 1,540,000/= x 3 = 4,620,000/=. The multiplier of 20 which the trial judge used was wrong and how he arrived at it was not explained.

Be that as it may, the total lost dependency would be apportioned to the dependants with the youngest getting the highest percentage because he/she would have the longest dependency.

I would apportion the total lost dependency of 4,620,000/= in this case in this way:-

- = 14%. (a) Ibrahim Nassir aged 15 years - (b) Mohamed Nassir aged 14 years = 15%. - = 16%. (c) Sarah Nassir aged 13 years - = 17%. (d) Faizal Nassir aged 11 years - = 18% (e) Hawa Nassir aged 10 years

**= 20% m.** Aziz Babu aged 3 years

=100%.

For the aforesaid reasons, ground 2 ofthe cross appeal would succeed.

In the result, I would allow the appeal and the cross appeal in part:

- (a) Appeal would be allowed to the extent that:- - **(0** the dependents should have been allowed total lost dependency as general damages.

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- (ii) to be general damages of 4,620,000/= apportioned as shown above. - (iii) Appellant should have been awarded the Special Damages of Shs. 320,000/= claimed. - (b) The appeal would be lost to the extent that:- - **(0** was the appellant was rightly denied general damages as a dependant. - **(C)** The cross appeal would succeed to the extent that:- - **(i)** the principle applied by the trial judge in assessing the lost dependency (general damages) was confused. - (d) The cross appeal would fail to the extent that:- - **(i)** the trial judge rightly held that the respondent is vicariously liable.

(e) Costs: - I would award costs ofthis appeal at 75% in favour of the appellant and 25% in favour of the respondent. As Twinomujuni, JA and Kitumba, JA both agree, the appeal and the cross appeal are allowed in part as stated above and on the terms stated hereabove.

Dated at Kampala this day of. 1999.

# G. M. OKELLO JUSTICE OF APPEAL.

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

$CORAM:$

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## HON. MR. JUSTICE G. M. OKELLO, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

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CIVIL APPEAL NO. 22 OF 1999

MUHAMED HASSIR KARUGALA ...................................

#### **VERSUS**

TRANSOCEAN (U) LTD. ..................................

(Appeal arising from the decision of the High Court (Mukanza, J.) delivered on $30/6/98$ in HCCS No. 741/90).

JUDGMENT OF TWINOMUJUNI, J. A.

I have had the advantage of reading in draft, the judgment of My Lord, Justice Okello, JA. I agree.

Dated at Kampala this A. M. day of ...................................

A TWO ONLY IN JUSTICE OF APPEAL

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

## HOLDEN AT KAMPALA

**CORAM:** HON. HON. HON. **MR. JUSTICE G. M. OKELLO, J. A. MR. JUSTICE A. TWINOMUJUNI, J. A. LADY JUSTICE C. N. B. KITUMBA, J. A.**

**CIVIL APPEAL NO. 22 OF 1999**

**BETWEEN**

**MOHAMED HASSIR KALIBALA APPELLANT**

**AND**

**TRANSOCEAN (U) LTD RESPONDENT**

(Appeal arising from the decision of the High Court (Mukanza, J) delivered on 30/6/98, whereby he dismissed the Plaintiff's suit.)

#### **J. A. JUDGMENT OF C. N. B. KITUMBA,**

of reading the judgment I agree with it and the I have had the benefit prepared by Okello, J. A. orders proposed by him.

this day of Dated at Kampala . . .1999.

**C. N. B. Kitumba Justice of Appeal.**