Masembe v Sugar Corporation and Kagiri (Civil Appeal No. 1 of 2000) [2000] UGSC 37 (1 July 2000)

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA

# AT MENGO

# (CORAM: WAMBUZI C. J., ODER, MULENGA, KANYEIHAMBA, MUKASA-KIKONYOGO JJ. S. C)

# CIVIL APPEAL NO.1 OF 2000

### **BETWEEN**

$=$ APPELLANT MILLY MASEMBE =

# AND

#### 3. SUGAR CORPORATION } 2. KAGIRI RICHARD **RESPONDENTS**

(Appeal from the decision of the Court of Appeal at Kampala in Civil Appeal No. 44 of 1997, dated 24<sup>th</sup> November 1998)

# JUDGMENT OF MULENGA, JSC

The appellant in this case, Milly Masembe, to whom I will refer as "the plaintiff" sued the two respondents, (namely, Sugar Corporation of Uganda Ltd., to which I will refer as "the 1<sup>st</sup> defendant," and its servant, Richard Kagiri, to whom I will refer as "the $2^{nd}$ defendant") in negligence, claiming inter alia, special and general damages for personal injuries she sustained, and loss she incurred, as a result of a traffic collision accident that occurred on $28^{\text{th}}$ December, 1993 at 8 o'clock in the night.

The facts of, and background to the case are well set out in the judgment of my learned brother Oder JSC, which he has just read, and I need not repeat them in detail. It will suffice to say the following. The collision involved a mini-bus taxi in which the plaintiff was travelling as a passenger, and a stationary tractor-drawn trailer loaded with sugar cane and owned by the 1<sup>st</sup> defendant. On the said date, during daytime, the $2^{nd}$ defendant was driving

the tractor along Kampala-Jinja road, when the tractor suddenly broke down. He went to fetch a mechanic leaving the tractor with its trailer load, at the spot where it broke down, on the left hand side of the road, facing Jinja. Later in the night, a mini-bus taxi being driven to Jinja hit and scraped against the rear of the trailer. As a result of the impact, the taxi was thrown forward overturned and came to rest on the right hand side off the road, about 36 metres from the point of impact. The plaintiff sustained serious personal injuries, lost property, and because of the resultant hospitalisation and inability to work she incurred medical expenses and lost income. In the ensuing suit, the main issue, both at the trial and on appeal, was, and continues to be, who was responsible for the collision and the resultant damage. In her plaint, the plaintiff sued only the $1^{st}$ and $2^{nd}$ defendants, the owner and driver of the trailer respectively, contending that the collision accident was solely caused by the latter's negligence, for which the former was also liable, vicariously. She went to the unusual extent of moving the court to have the case "withdrawn" from the owner and the driver of the mini-bus taxi who had been joined as co-defendants by court order on application of the $1^{st}$ and $2^{nd}$ defendants.

In his judgment the learned trial judge held that both the 2<sup>nd</sup> defendant and the driver of the mini-bus taxi had been negligent and responsible for the accident. He apportioned the blame between them holding the former 80% liable and the latter 20% liable.

On appeal, however, the Court of Appeal set aside the judgment and order of the High Court holding that the $2^{nd}$ defendant was blameless, and that it was the negligence of the taxi driver that caused the accident.

The plaintiff has appealed to this Court on the following four grounds, namely, that

- $``1.$ The learned Justices of the Court of Appeal failed to judicially reconsider the evidence and evaluate it and as such came to wrong decisions. - $2.$ The learned Justices of the Court of Appeal erred in law and in fact by drawing wrong inferences from photographs taken at the scene a day after the accident - $3.$ The learned Trial (sic) Justices erred in law and in fact when they held that the driver of Motor Vehicle No. UPS 847 was solely to blame for the accident.

#### $4.$ The learned Justices of court of Appeal erred in law and in fact in not considering the appellant's cross appeal."

The complaints that are grounds 1,2 and 3 are inter-related. They are all concerned with the manner in which the Court of Appeal considered or failed to consider the evidence, and the court's conclusions from it, leading to overturning the judgment of the trial court. I therefore find it appropriate to consider all three grounds together.

In his submissions to this Court on grounds 1 and 2, Mr. Sentomero, Counsel for the plaintiff, invited us to re-evaluate the evidence, contending that the Court of Appeal had failed in its duty, as a first appellate Court, to properly re-evaluate the evidence as a whole. He submitted that the Court's power in that regard is derived from r.29 (1) of the Rules of this Court, and he cited as precedent the decision in PANDYA vs R (1957) EA 336. In reply, Mr. Serwanga, Counsel for the defendants did not dispute this Court's power to re-evaluate the evidence. He, however, maintained that the Court of Appeal had been live to its duty as a first appellate Court to re-hear the case, and that it had re-evaluated the evidence and arrived at its own He distinguished **PANDYA** vs $R$ (supra) where the first conclusion. appellate court had failed in that duty, and submitted that in the instant case there was no justification for the second appellate court to interfere with the conclusions arrived at by the first appellate court. It seems to me therefore that the issue is not the power or jurisdiction of this Court to evaluate the evidence. That power is clearly derive from the Judicature Statute 1996. Section 5 of the Statute provides:

#### An appeal shall lie to the Supreme Court from such decisions $5.$ of the Court of Appeal as are prescribed by the Constitution, this statute or any other law."

In section 6, the Statute prescribes what appeals shall lie to the Supreme Court from decisions of the Court of Appeal in criminal matters. These are categorised into:

- Appeals on matters of law or mixed law and fact, and $(a)$ - Appeals on matters of law only. $(b)$

Section 7 of the Statute which, according to the marginal note, prescribes appeals to the Supreme Court from decisions of the Court of Appeal in civil matters, does not make similar categorisation so that an appeal may lie even on a matter of fact only. It reads:


" $7.(1)$ An appeal shall lie as of right to the Supreme Court where the Court of Appeal confirms varies or reverses a judgment or order including interlocutory order given by the High Court in the exercise of its original jurisdiction and either confirmed, varied or reversed by the Court of Appeal."

Rule 29(1) of the Rules of this Court appears to me to relate more to section 6 of the Statute because it is silent on the power of the court to decide on "a" matter of fact only."

In a line of decided cases this Court has settled two guiding principles in its exercise of this power. The first is that failure of the first appellate court to re-evaluate the evidence as a whole is a matter of law and may be a ground of appeal as such. The second is that the Supreme Court, as a second appellate court, is not required to, and will not re-evaluate the evidence as the first appellant court is under duty to do, except where it is clearly necessary. Having regard to the circumstances of the instant case, I think it is clearly necessary and even inevitable for this Court to re-consider the evidence. This is not because the Cour of Appeal did not re-evaluate the evidence but because it is only that way, in my view, that this Court can determine whether the Court of Appeal erred where it differed from the trial court both on findings of fact and conclusions drawn therefrom.

The evidence, from which both courts below drew the conclusions, had two versions, which conflicted in material particulars. The learned trial judge evaluated the evidence and believed one version, but when the Court of Appeal re-evaluated the same evidence, it accepted the other version instead. The conflict in the evidence is in regard to the situation on the ground at the time the collision accident occurred, namely the position of the trailer on the road, and whether or not there were any signs to warn other road users of the presence of the stationary trailer where it was. In a nutshell the version for the plaintiff as accepted by the learned trial judge was:

- (a) That the trailer was in the middle of the road occupying the left hand side lane; and - (b) That the trailer had no lights and there were no visible signs to warn other road users of its presence.

On the other hand the version put forward for the defendant, which the Court of Appeal accepted, was:

(a) That the trailer was on the extreme left hand side of the road, and

(b) That there was warning signs in form of tree branches placed on the road surface, and reflectors affixed to the trailer.

The learned trial judge after reviewing the evidence, noted the divergence of the two versions, and not surprisingly, observed that (his task) was " $a$ " question of who to believe." On the position of the trailer, he opted to believe PW4, P/Cpl. Juventine Apunyo, and he gave his reasons for doing so. He said:

> "I also agree with Apunyo's evidence that the vehicle was dangerously parked almost in the middle of the road so that if somebody had to by-pass it he had to use the lane for the vehicles facing the opposite direction. This piece of evidence is supported by the evidence of the second defendant who said that the tractor stopped abruptly and he left it at the place where he was driving it which means it was on the driving lane not off the road. There was no evidence from the defence side to show that after the vehicle had broken down, it was pushed aside in order to clear the road for other traffic."

P/Cpl. Apunyo is a police officer who drove passed the trailer in the afternoon on the way to Mukono, and again in the evening shortly before the accident. He also rushed to the scene upon hearing a bang and later made a sketch plan of the scene. However, he was not the only witness who testified on the position of the trailer. Apart from the defence witnesses whom the trial judge disbelieved, three other witnesses for the plaintiff gave evidence on the point. The plaintiff herself testified that she was in the back seat of the mini-bus taxi. She first heard fellow passengers shout and when she peeped outside she saw a tractor ahead and then heard a bang, followed by overturning of the taxi and her loss of consciousness. In crossexamination she said the tractor was "in the middle of the road." The evidence of the other two witnesses, however, did not put the trailer in the middle or even nearly in the middle of the road. PW3, SSP Benjamin Namanya, is the senior police officer that P/Cpl. Apunyo drove to and from Mukono. He also rushed to the scene of the collision upon hearing a bang and people crying. He testified that on his way to Mukono, he had seen the trailer attached to the tractor and described its position thus:

"It was stationary on the left side of the road as one goes to Lugazi. One side of the tyres was on the road and one part was on the shoulder of the road."

PW5, Erismas Musisi Kigonya, is a resident of the area where the accident occurred. He testified that he had seen the tractor – drawn trailer throughout the day from about 11.00 a.m. because it had broken down near his home. He described its position in cross-examination in these words:

> "The tractor was on the left side of Jinja road near a trench. The bigger part of the tractor was on the road ........whenever other vehicles were passing the tractor they would divert to the right side of the road."

In re-examination he explained:

"Because of the protruding sugar canes, other vehicles had to divert on the other side of the road in order to overtake the tractor."

The learned trial judge did not explain why he ignored the description of the position of the trailer as given by SSP Benjamin Namanya and Musisi-Kigonya and preferred that given by P/Cpl. Apunyo notwithstanding the fact that he held all three to be independent witnesses who did not stand to gain anything by telling a lie to the court. Besides, the evidence of the $2<sup>nd</sup>$ defendant, which the learned trial judge found to support P/Cpl. Apunyo's description, is not incompatible with the description by SSP Bejamin Namanya and Musisi-Kigonya. That the tractor broke down abruptly and was left where it was being driven does not, in my view, necessarily rule out the same being partly on the road and partly on the road shoulder. Be that as it may, the sketch plan Ex. P6, drawn by P/Cpl. Apunyo himself, and two of the photographs taken in the morning after the accident, Exh D1, do not support the description that the trailer was "dangerously parked almost in the middle of the road." The former, though not drawn to scale, shows it at the near side edge of the road, while the latter show that the near side tyres of the trailer were on the shoulder of the road.

Several witnesses for the defence in addition to the $2^{nd}$ defendant also described the position of the trailer. DW2, Selestino Ocen, a photographer employee of the 1<sup>st</sup> defendant, introducing the photographs exhibited in evidence as Exh D1 said to the court:

> "The fifth photograph shows how the tractor was parked at the side of the road.......... At the side of the road where the tractor was parked there was a trench and it was parked near the trench."

DW3 Charles Ongom, another employee of the 1<sup>st</sup> defendant, also testified that the tractor was parked on the left side facing Jinia near a trench. DW4. Charles Lukwago, the turn-boy, said virtually the same as the driver of the tractor, except he added, "one of the tyres of the tractor was on the pavement of the road." DW5, Takiruta Malaru, a security officer, legal affairs of the $1<sup>st</sup>$ defendant testified that in the night of the accident at about 10.00 p.m he happened to drive by the scene on his way back to Lugazi. Upon recognising the tractor involved, he stopped and met a policeman and Charles Lukwago the turn-boy whom he drove away. The following morning he returned to the scene with the investigator and the photographer, and he took some measurements at the scene. According to him:

> "There was almost no distance from the trench to the trailer as it was parked at the end of the road, part of it was on the road."

The Court of Appeal did not go into detailed analysis of the evidence on this aspect. namely: position of the trailer, but in the leading judgment of Okello J. A., with which the other members of the court agreed, it is evident why the version of the defence case was accepted. After summarising the evidence of DW1 Richard Kagiri, and DW4 Charles Lukwago, on that point to be that:

#### $(1)$ The tractor stopped suddenly and remained where it was being driven....

#### $(2)$ The tractor/trailer was on the left hand side of the road as you go to Jinja.",

The learned Justice of Appeal later said:

"Secondly Ex. D1 (No. 28 and 39) both show the position of the tractor/trailer as being on the left hand side of the road as you face Jinja side. It partially covered that side of the road. It was not dangerously parked almost in the middle of the road as the trial judge found."

Clearly, the evidence of the photographs had a critical influence on this holding. Indeed, the learned Justice of Appeal went on to observe: "Photographs graphic $are$ more evidence and in this case depicted more accurately and reliably the situation at the scene $of$ the accident."

I respectfully agree with the holding of the Court of Appeal as to the position of the trailer at the time the collision occurred. I think the weigh of evidence of the witnesses who described the position support the holding. I would also not fault the reliance on the photographs, albeit they were taken the following day, since there is no suggestion that there was any interference with the scene which, in any case, appears to have been guarded by the police most of the time after the accident.

I have gone into much detail to demonstrate that the holding of the learned trial judge on the position of the trailer is not supported by the evidence, because to my understanding, that holding is the base for the ultimate question on the cause of the collision accident and the blameworthiness for it. I will be briefer on the second aspect, namely evidence on warning signs, if any, of the presence of stationary trailer. Both Richard Kagiri the tractor driver, and Charles Lukwago, the turn-boy testified that apart from reflectors affixed to the tractor and the trailer, they had placed broken tree branches on the road in front and behind the tractor and trailer to warn other road users of the presence of the broken down tractor/trailer. Both Ongom, DW3 and Malaru DW5, also testified that they saw tree branches placed on the road. Surprisingly, however, DW2, Selestine Ocen the photographer, did not mention, and does not appear to have been asked about any tree branches placed on the road at the scene. He however, saw and deliberately photographed at close range reflectors on the trailer. The two police officers, PW3 and PW4, as well as PW5, Musisi-Kigonya, specifically testified that there were no tree branches placed on the road to warn road users of the presence of the broken down tractor. The senior officer said that he did not examine the tractor and trailer after the accident and did not see if they had reflectors because he was more concerned with the victims of the accident. P/Cpl. Apunyo on the other hand, stated categorically that there were no reflectors. The holding of the learned trial judge on this aspect is evident in the following passage of his judgment.

> "I do not believe the story as told by the driver and his turn-boy that ....... the vehicle had signs to show that it had broken down so as to warn other road

users about the danger ahead. I accept the evidence of the plaintiff and her witnesses to the effect that the vehicle was left on the road unlit and unattended to thus leaving no sign warning other road users................................... Police Officer Mr. Benjamin Namanva **.....................................** and had no reason for telling this court a lie when he said that there were no signs to indicate that it had broken down; in the same way the evidence of his driver also was evidence of an independent witness. He also agreed that the vehicle was parked on the road without anything to show that it had broken down and there were no reflectors on either the tractor or the trailer.................................... photographs the taken $b_{\nu}$ DW2...........do not show any objects lying on the road showing that some branches had been placed on the road."

The Court of Appeal however disagreed with these findings. In the leading judgment, Okello J. A., noted the evidence of DW1 and DW4 regarding the tree branches and the reflectors, the photograph Ex. D1 (No.39) which he said "shows objects (tree branches) on the road;" and the photograph EX. D1 (No.22) which "shows the rear reflectors on the trailer" and went on to hold:

> "It is also plain that warning signs in the form of tree branches were placed on the road in front and at the rear of the stationary vehicle. Further, the reflectors on the rear of the trailer were clearly visible."

I agree with this holding only in part. The evidence of the driver and his turn-boy, that there were reflectors on the tractor and the trailer, is corroborated by DW2 who took and produced in evidence a photograph of the rear of the trailer, Ex. D1 No.22, clearly showing reflectors affixed to the trailer. As for Ex. D1 No.39, however, I think, with all due respect to the learned Justices of Appeal, that they misdirected themself in regard to what is visible on to the photograph. In the first place, DW2 who took it did not introduce that photograph as snowing any tree branches. Secondly, a close look at the photograph reveals that the photograph was taken from the front of the tractor with the camera, therefore facing Kampala side. What appears to be the objects observed by the learned Justices of Appeal are lying on the shoulder of the road on the right hand side facing Jinja, that is on the opposite side of the road to where the tractor and trailer were. A tree branch or other object intended to warn other road users of the presence of the stationary trailer/tractor would have been placed on the same side if the road where the trailer was, and on the road rather than on the road shoulder. It is indeed significant that neither the photographer, nor any other witness identified or was asked to identify the objects seen on that photograph, as the tree branches placed by DW1 and DW4. It seems to me, therefore, that of the two versions, the more probable is that there were no tree branches placed on the road as a warning of the presence of the stationary trailer.

Having regard to what I have discussed above and the rest of the evidence, I find that the situation on the ground prior to the collision accident was as follows. The tractor and its trailer loaded with sugar cane, were stationary at night, parked on the extreme left side of the road facing Jinja, partly off the road but occupying part of the driving lane. They were not lit. The trailer had reflectors affixed to the rear, but there was no other sign warning of the presence of the stationary trailer and tractor. According to the police accident report, Ex. P1, there were no streetlights as the spot was outside township, but the weather was clear; and the road was tarmacadam type, in good repair and straight. According to Malaru DW5, the stationary trailer could be seen from a place called Kayinja. That, in my view, is the setting in which the mini-bus taxi, driving from Kampala to Jinja, hit the rear of the trailer. I now turn to the issue of negligence leading to, and the liability for, the collision accident.

In concluding that the taxi driver was solely responsible for the accident, Okello J. A., after evaluating the evidence said:

> "In view of the above, I am unable to agree with the trial judge's findings of fact regarding the situation at the scene of accident, and consequently, the blameworthiness for the accident. It is plain from the above evidence

that the second appellant was driving the trailer-pulling tractor diligently on the far left hand side of the road when it suddenly broke down. It is also plain that warning signs in the form of tree branches were placed on the road in front and at the rear of the stationary vehicle. Further, the reflectors on the rear of These were the trailer were clearly visible. sufficient warnings to any vehicle or other road users approaching the stationary tractor.

For these reasons, I am unable to agree with Mr. Kiapi that the learned trial judge properly evaluated the evidence that was before him. If he did he would have found as a fact that the second appellant who was the driver of the tractor had done all that was expected of him in the circumstances. He would have also found that it was the driver of the mini-bus Reg. No. UPS 847 who hit the back of the stationary ....... trailer, that drove without any proper look out to avoid the accident. If he had driven with a proper look out, with all those warning signs, then he would have seen the trailer and avoided hitting it."

My main reservations about this are two. First, in my opinion, it was not proved as a fact, on a balance of probabilities, that any tree branches were placed on the road as a warning to other road users, of the presence of the stationary trailer. Secondly, although the trailer was parked on the extreme left hand side leaving some space for other vehicles to pass, part of it occupied a section of the driving lane. Because of that, I am unable to agree with the Court of Appeal's holding that the driver of the tractor had done all that was expected of him in the circumstances. I think since the road shoulder was spacious enough, he ought to have pushed the tractor and trailer parked totally off the road removing them from harm's way wholly. To that extent I would agree that there was negligence on the part of the $2^{nd}$ defendant.

For my part, I am satisfied that the Court of Appeal was alive to its duty, as a first appellate court, to rehear the case, and that it re-appraised the evidence

as it is required to do. However, I would hold that its conclusion that photograph No.39 in Exh. D1 corroborated the evidence of the tractor driver and turn-boy that they had placed tree branches on the road, was a material misdirection on the evidence, and that misdirection was relied on heavily as is evident from the observation by the learned Justice of Appeal in the leading judgment, reproduced earlier in this judgment that "Photographs are more graphic evidence and in this case depicted more accurately and reliably the situation at the scene...." It seems to me that if it were not for that misdirection, the Court of Appeal would not have held that the 2<sup>nd</sup> defendant had done all that was expected of him.

It must be emphasised however that negligence is not actionable per se. It is actionable only where it has caused damage. In that regard, therefore the primary task of the court in a trial of a negligence suit such as this, is to consider whether the act or acts of negligence caused the damage or injury complained of; and where the damage was caused by the negligent acts of different persons, to assess the degree of their respective responsibility and blameworthiness, and apportion liability between or among them accordingly. From the evidence on record in the instant case, I would not hesitate to hold as the learned trial judge did, that the collision accident and, therefore the resultant damage was caused by the negligence of both drivers. leaving only the issue of apportionment of blame. To apportion properly however it is necessary to know how the accident happened.

It is unfortunate that the only accepted eyewitness to the collision, the plaintiff, was not in a position to give cogent evidence as to the cause of the collision. According to her own testimony, she does not appear to have observed, or to have been in a position to observe, much of what happened. She said:

> "When reached somewhere we near Namagunga, I heard people in front seats shouting and raising alarms I was at the back When I peeped to see outside I saw a seat. tractor ahead then I heard a bang then the taxi started overturning. At that stage, I lost my consciousness which I recovered at Kawolo Hospital, after about 30 or 40 minutes."

In cross-examination she said:

"I saw the tractor when I was about 30 metres away. Before I could find out why those people 356

## were shouting and raising alarms I heard a bang."

Clearly everything happened too fast for her to observe or perceive the cause of the collision. However she did say that the lights of the taxi were on and that enabled her to see the tractor when she peeped outside; and for what it is worth, she expressed opinion that the taxi driver "was not driving at high *speed*" but at about 70 km per hour. Musisi Kigonya who was in the vicinity of the accident when it occurred specifically said, that he did not witness the collision, as he was a busy unterthering goat until he heard the bang. The turn-boy who testified that he observed the taxi as it was driven upto the collision, was discredited as a witness such that it would not be prudent to place reliance on his evidence. The only person who undoubtedly must have known what led the taxi to hit the stationary trailer is the driver of the taxi. Unfortunately he did not testify. An order making him a codefendant was subsequently reversed and he was never called as a witness. That deprived the court of direct evidence on the crucial issue of the cause of the accident. The court was left to make deductions and inference from indirect evidence. Thus, notwithstanding the absence of any direct evidence on what led to the collision, the learned trial judge deduced from the evidence before him that the taxi driver's negligence also caused the accident. In my view he was entitled to do so. He said:

> "It must however be pointed out that the presence of the tractor and the trailer on the road were not the only cause of the accident, the driver of the taxi (whom the plaintiff decided not to proceed against) had also his share of blame for the accident. He must have been somehow unreasonable in the way he was driving his taxi because if his speed was reasonable and he was on the look out for other objects on the road he would have seen the tractor and the trailer at a distance long enough to enable him dodge the two objects and more so as there was no any other vehicle coming from the opposite side at the material time, as it was in the two cases I have just quoted."

The two cases which the learned trial judge cited, and which I will revert to shortly, are **KHAMBI vs MAHITHI** (1969) EA 70, and **KARISA vs SOLANKI**

$(1969)$ EA 318. First I should say that I agree with the deductions made by the trial judge, that the taxi driver must have been driving at an unreasonable speed and without due look out in the circumstances. A reasonable person driving a motor vehicle on the highway, with due care and attention, does not hit every stationary object in his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object. This is true whether he is driving during daylight or at night. I think the words of Parke B., in the age of travel by horse drawn carriages, are also applicable to drivers in this age of travel by the motorcar. In a case, DAVIES vs. MANN (1842) 10 M. & W.546, where the defendant driving a horse-drawn wagon crashed into and killed the plaintiff's donkey which was wrongly tied in the highway, Parke B., holding the wagon driver liable said:

> " Although the ass may have been wrongly there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road."

A very similar view was cited with approval in the decision of the Court of Appeal for Uganda (predecessor to this Court) in ANDEREYA SINZIMUSI vs. GOMBA BUS SERVICE, Civil Appeal No. 8 of 1979 (unreported). In the leading judgment Nyamuchoncho J. A, said:

> "What a prudent motorist would have done is succinctly put by Rawlatt J. auoted in Tart vs Chitty & Co. (1931) All ER (Rep.) 826 p.829 as follows:

> > "......... It seems to me that when a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound to go not faster than will permit of his stopping or deflecting his course at any time to avoid anything he sees after he sees it....'

I respectfully agree with these observations....." I also agree and would add that one driving at night should be even more alert. In KARISA vs SOLANKI (supra) Sir Charles Newbold P., at p.321 H, referring to a driver whose car collided with a stationary lorry he was passing while a bus was coming from the opposite direction; said:

> "...as the car driver chose to proceed at a speed of 60 miles per hour in the particular circumstances, then his look-out should have been all the more acute and keen and he should have been ready to take evasive action during the time his vision was further limited by the *presence of the bus.*" (Emphasis added)

In the times of DAVIES vs MANN (supra) the common law did not recognise sharing of blame as it does to day under the principle of contributory negligence. That decision therefore was tantamount to holding that although the plaintiff was blameworthy for tying the donkey on the highway, the wagon driver was more blameworthy, for failing to avoid or prevent the crashing into, and killing the donkey. In the instant case, under the principle that liability may be apportioned where two or more persons cause damage by negligence, the learned trial judge, after holding in the passage I have reproduced earlier in this judgment, that the taxi driver had a share of the blame for the accident, went on to apportion the blame thus:-

> "Considering all the facts surrounding this case the driver of the taxi must have been 20% to blame for the accident while Kagiri (i.e. 2<sup>nd</sup> defendant) was 80% to blame."

It is not apparent from this holding why the learned trial judge apportioned more blame to the 2<sup>nd</sup> defendant. In their appeal to the Court of Appeal the defendants criticised that apportionment. Their second ground of appeal read:

> $\degree$ 2. The learned trial judge erred in his apportionment of liability between the appellants and the driver of motor vehicle Reg. No. UPS 845 in which the respondent was travelling."

The Court of Appeal did not deal with the issue raised in that ground, in view of its holding that the $2<sup>nd</sup>$ defendant was blameless. Technically, therefore, if this Court overrules that decision and holds that both drivers

were to blame, it could remit the case back to the Court of Appeal to decide on the said ground of appeal. In my view, however, the interests of justice will be served better if, to avoid the inevitable delay that would ensue, this Court considers the issue and disposes of it. I will therefore proceed to consider the apportionment as the Court of Appeal, in my view, should have done.

When the learned trial judge held that the $2^{nd}$ defendant was negligent in the way he left the tractor and trailer, he said that he found great assistance in the two cases, which I mentioned earlier in this judgment. It is therefore useful, to consider those two cases, to gain some insight in the learned judge's probable considerations. In **KHAMBI** vs **MAHITHI** (supra) the facts were partially similar to those in the instant case. A's lorry was stationary at night, on the tarmac on its proper side of the road, but was without either red taillights or rear reflectors. R's lorry approached A's lorry from the rear and pulled out to pass it, and in the process scraped the parked lorry and collided with an on-coming car travelling in the opposite direction. The owner of the car, sued both A and R with their respective drivers. The trial court held that drivers of both lorries had been negligent and apportioned 75% of the blame to the driver of A's stationary lorry, and 25% A and his driver appealed against the to the driver of R's lorry. apportionment and R and his driver supported it. The Court of Appeal for East Africa refused to interfere, and upheld the apportionment. The facts in KARISA & ANOTHER vs SOLANKI & ANOTHER (supra) were also similar. As I have already noted earlier, in that case a car had collided with an unlighted stationary lorry at night. At the time of the collision, there was a bus driving in the opposite direction towards the car, but apparently the bus was not involved in the collision. A passenger in the car sued both the owners of the car and the lorry, and their respective drivers. The trial court held that the accident was caused wholly by the negligence of the driver of the stationary lorry, and dismissed the claim against the owner and the driver of the car. The lorry owner and his driver appealed arguing that the car driver had also been negligent. The Court of Appeal for East Africa allowed the appeal and apportioned 20% of the blame to the car driver and 80% to the driver of the stationary lorry. The apportionment of more blame on the driver of the stationary lorry in both KHAMBI'S and KARISA's cases, would appear to have heavily influenced the learned trial judge in the instant case in assessing the negligence of the $2^{nd}$ defendant at 80%. Although the learned trial judge acknowledged a distinguishing factor between the instant case and the other two cases, he either misconstrued its import, or ignored it as of no consequence, when he mentioned, as if in passing in the passage I reproduced earlier in this judgment, that in the instant case "there was no any other vehicle coming from the opposite side....as it was in the (other) Clearly, the presence of the on-coming vehicle from the two cases". opposite direction was a mitigating factor in the other two cases when assessing the blameworthiness of the driver of the moving vehicle. In the instant case there was no such mitigating factor.

It also appears to me that the learned trial judge was influenced, in his assessment, by the view he took of the act of leaving an unlighted vehicle at the road. He said:

> "It is trite law that leaving unlit vehicle on the road unattended to and without any warning that the vehicle has broken down is an act of negligence on the part of the person who leaves that vehicle on the road in such a position." (Emphasis is added)

With due respect, that is an over-statement amounting to a misdirection on the law. The act of the $2<sup>nd</sup>$ defendant as described by the learned trial judge is evidence from which negligence can, and is always inferred, depending on the circumstances of each case. It does not follow however, that such act is necessarily, or always, more blameworthy than other acts of negligence. Indeed the inference of negligence in such case can be rebutted by appropriate evidence (see: **MOORE vs MAXWELLS** (1968) 2 All ER 779) There is no act or omission that has static blameworthiness. Each case must be assessed on its own circumstances. The apportionment ought to be a result of comparing the negligent conduct of the tortfeasors, to determine the degree to which each one was in fault, both in regard to causation of the wrong and unreasonableness of conduct.

It is well settled that an apportionment by the trial court ought not to be interfered with on appeal, save in exceptional cases, such as where there is some error of principle, or the apportionment is manifestly erroneous. (See SHARIFF vs SETHAN and precedents cited therein; and KHAMBI vs **MAHITHI** (supra) at p.71). The apportionment in the instant case is, in my $\mathbf{M}$ view, such exceptional case where the appellate court should intervene to prevent an injustice. The apportionment is substantially based on the misdirections I have pointed to, and the application of distinguishable precedents, secondly in my opinion, it is manifestly erroneous.

FERNANDES vs NOFONHA (1969) EA 506 was a case of collision between a motor cycle which was being ridden along the main road, with the right of way, and a car which was driven from the side road into the main road, but stopped upon the driver realising that the cyclist was faster than he had thought. The motorcycle skidded out of control, apparently because of a smooth rear tyre. Duffus V. P., said at p. 511 D, G:

$\overline{a}$

"On the evidence before the court . I am of the view that the learned judge misdirected himself on the facts and also on the law in finding that the (car driver) was free of any blame for the $accident$

The primary cause of the accident was the car driver's wrongful attempt to cross over the main road, but the evidence does establish that the cyclist was also negligent in the control of his cycle."

The blame in that case was apportioned as to $50\%$ on each. The apportionment was clearly made after weighing the degree of fault of the In ANDEREYA SINZIMUSI vs ridder and the driver respectively. GOMBA BUS SERVICE (supra) a herdsman sued the owner of a bus which knocked him down along an upcountry road, where he was looking after his cattle. The defence, which the trial judge believed, was that the herdsman, on seeing the bus cruising, rushed onto the road apparently to save his heifer, which stood still in the middle of the road. The bus skidded and in the process collided with the herdsman, and ended in a ditch on its wrong side. At the trial, the driver, like the taxi driver in the instant case, did not give evidence to explain what steps if any, he took to avoid the collision, and why the bus skidded. The trial court held the herdsman wholly to blame for his mishap but on appeal the Court of Appeal applying the test in the passage reproduced earlier, held that the bus driver was guilty of contributory negligence. On apportionment Nyamuchoncho J. A., said:

> "I must say that I have not found it easy to apportion the blame in this case. The issue has been complicated by the evidence of (the bus conductor)."

After evaluating the conflicts in the evidence of that witness, the learned Justice of Appeal went on:

"This evidence confirms that appellant fell on his correct side in the grass. On this evidence, I think the greater degree of blame attaches to the (bus) driver. I would reverse the percentage proposed by Mr. Kirenga, counsel for the respondent, at the trial and apportion the blame in this case as 70% on the part of the driver and 30% on the part of the appellant."

In the instant case, there is on the one hand, the failure on the part of the $2^{nd}$ defendant to remove the broken-down tractor with its trailer load wholly from the driving lane and out of harm's way, or to provide adequately effective warning to other road users of its presence. On the other hand there is the failure on the part of the taxi driver, to take appropriate action to avoid or prevent the collision when it was possible to do so. Given the circumstances of the straight and wide road, with no obstacle in any form that placed him in any degree of dilema, such as an on-coming vehicle, he must or ought to have picked up from the lights of his vehicle, and seen, the trailer at a reasonable distance, and to have driven safely passed it. I have no hesitation in holding that according to the available evidence the taxi driver was more in fault than the $2^{nd}$ defendant. I would apportion the blame as 40% on the part of the $2^{nd}$ defendant, and 60% on the part of the driver of the mini-bus taxi Reg. No. UPS 847. Accordingly, in my view, ground I should fail but grounds 2 and 3 ought to succeed.

I now turn to ground 4 which is a complaint against the Court of Appeal's failure or omission to consider the plaintiff's cross-appeal in that court. In my view, having regard to its decision that the suit be dismissed, the Court cannot be faulted for not considering the cross-appeal. The issues raised in the cross-appeal would have been relevant and applicable only if the appeal had been dismissed. The Court of Appeal, was not under obligation in the circumstances, to consider the cross-appeal although it had the option to do so in anticipation of a further appeal to this court. In my view, therefore, the omission was not an error either in law or in fact.

However, since the issues in the cross-appeal relate to the form of the final order, this Court can, in its final order, deal with them and where appropriate cure any error made by the learned trial judge. I would summarily dispose of the issues as follows:

First, it seems to me that it was a slip on the part of the learned trial judge to order that the defendants should pay the decretal amount in equal shares. They did not share in contributing to the tort. The $1<sup>st</sup>$ defendant was vicariously liable for the $2^{nd}$ defendant's negligence. The appropriate order is that the two defendants are liable jointly and severally.

On damages for loss of earnings, I would not interfere with the amount of Shs.3,000,000/= awarded by the trial court for loss of earnings. This. however, is simply because the defendants did not cross appeal against that award. In my view, the plaintiff did not prove that claim to the required standard. Special damages have to be proved strictly. I think it would set a wrong precedent to hold that a plaintiff can succeed on a claim of an alleged loss of such large profit by merely saying so without any other evidence to confirm it. That a working capital of two and half million shillings, earned a monthly net profit of one million eight hundred thousand shillings, which is equivalent to a 74% return, appears to me to be so improbable that it requires tangible proof to be believed.

Lastly, an award of interest is within the discretion of the court, and should not be interfered with an appeal, unless it is shown that the discretion was exercised on a wrong principle or otherwise unjudicially. It is the accepted principle that interest should run from the date the amount awarded became due, and for that reason it is normal to order that interest shall run on special damages from the date of filing suit, (and sometimes even earlier), and on general damages from the date of judgment, till payment in full.

That principle was clarified in the judgment of Spry V. P., in MUKISA **BISCUITS MANUFACTURING** $\begin{array}{ccc}\nCO. LTD & vs & WEST\n\end{array}$ **END DISTRIBUTORS LTD. (No.2)** (1970) EA 469, and was more recently reiterated with approval by Wambuzi C. J., in **SIETCO** vs **NOBLE BUILDERS (U) LTD** Civil Appeal No.35 of 1995 (SC) (unreported). To my mind, however, it is an important guiding principle. It does not amount to, and should not be construed as a rule of law, restricting the court's discretion. Secondly the rate of interest is also within the absolute discretion of the court. There is no general rule or principle that the rate of interest on special damages has to be higher than that on general damages. The rationalisation for an award of interest is that the defendant is deemed to have knowingly kept the plaintiff out of his money, and having had the use of it himself. The aim is that he ought to compensate the plaintiff accordingly. On that basis, I would have thought that an award of interest at a rate as high as "*commercial rate*", would be more appropriate in suits of a commercial nature or where the plaintiff shows that he incurred that rate of interest, in his expenses occasioned by the defendant's wrong. In the circumstances of the instant case, I would fault the trial judge only for failure to apply the principle that interest should run from the date it is found to have been due. I think, interest on special damages in this case ought to run from the date of illing suit. I would not vary the order by the trial judge that the decretal sum should carry interest at the rate 10% per annum. I would, however, order that interest should be payable on special damages from the date of filing suit, and on general damages from date of judgment, till payment in full.

In the result, I would allow the appeal and set aside the judgment and order of the Court of Appeal. I concur that the judgment of the High Court be reinstated with its orders varied as proposed by my learned brother, Oder JSC.

**DATED** at Mengo this ...... $7^{TH}$ .... day of ... July......... 2000.

## J. N. MULENGA **JUSTICE OF SUPREME COURT.**

## I CERTIFY THAT THIS A TRUE COPY OF THE ORIGINAL

**W. MASALU MUSENE** REGISTRAR, THE SUPREME COURT.