Nakalema v Michalistanos and Another (Civil Appeal No. 37 of 1956) [1950] EACA 172 (1 January 1950)

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), SINCLAIR (Vice-President) and **BRIGGS, Justice of Appeal**

## MARIAMU NAKALEMA, Appellant (Original Plaintiff)

## (1) STANISTAWA MICHALISTANOS and (2) PAULO KWISIBA, Respondents (Original Defendants)

## Civil Appeal No. 37 of 1956

(Appeal from the decision of H. M. High Court of Uganda, Sheridan, J.)

Master and servant—Whether servant acting within scope of his employment Onus of proof—Uganda Law Reform (Miscellaneous Provisions) Ordinance, 1953—Uganda Evidence Ordinance section 105.

The appellant claimed damages for the death of her husband who was killed by a tractor owned by the first respondent and driven by her servant the second respondent who was employed to drive the tractor. The trial Judge found that the accident had occurred at 7.30 p.m., that the deceased was walking three yards off the road, that the tractor had no light and was not licensed so that it could not lawfully be driven on a public highway, but he upheld a submission that it had not been shown that the driver was acting within the scope of his employment and held that the first respondent was not liable.

Held (22-5-56).-As the facts proved showed that at the time of the accident the second respondent was driving the tractor which he was employed to drive, a prima facie case had been established that he was acting within the scope of his employment, and if he was not, then the burden of proving this had shifted to the first respondent.

Appeal allowed in part. Proceedings remitted to the High Court to hear further evidence.

Cases referred to: Milner v. The Great Northern Railway Company, (1884) 50 L. T. 367; Laurie v. Raglan Building Co. Ltd., (1942) 1 K. B. 152; Alexander v. Rayson, (1936) 1 K. B. 169; Young v. Rank, (1950) 2 K. B. 510; Newell v. Newell, (1955) 22 E. A. C. A. 256.

Appellant in person.

Hunt for respondent No. 1.

Respondent No. 2 in person, in custody.

JUDGMENT (prepared by SINCLAIR, V. P.).—The plaintiff, who is the present appellant, sued the first respondent and her servant, the second respondent, under the provisions of the Law Reform (Miscellaneous Provisions) Ordinance, 1953, for damages in respect of the death of her husband alleged to have been caused by the negligent driving of the second respondent. At the close of the case for the appellant the first respondent's advocate, Mr. Hunt, submitted that the appellant had failed to discharge the onus which lay upon her of proving that at the time of the accident the second respondent was acting within the scope of his employment. The learned trial Judge upheld this submission and dismissed the suit as against the first respondent. He also dismissed the suit as against the second respondent since the appellant did not wish to proceed against him as he had no money. The appellant appealed to this to this Court. We allowed the appeal in part, set aside the judgment and decree so far as they related to the first respondent, and remitted the matter to the trial Judge with a direction to hear any evidence offered by or on behalf of the first respondent on the issue whether or

not the second respondent was at the time of the accident acting within the scope of his employment and to hear any evidence offered by or on behalf of the appellant in rebuttal on the said issue and to make a finding thereon and, if the said finding were in favour of the appellant, to assess the damages and in either case to enter judgment accordingly. We made no order as to the costs of the appeal. We now give our reasons therefor.

The learned Judge found the following facts proved or admitted. On the evening of 5th June, 1954; the appellant's husband was knocked down and killed on the Mukono-Nakifuma road by a tractor driven by the second respondent who was employed as a tractor driver by the first respondent, a Polish lady residing at the nearby Mpoma Estate. The tractor belonged to her. The deceased was knocked down while he was walking some three vards off the road; the tractor had no lights and was unlicensed. After the accident the first respondent was interviewed by Sergeant Masiga and Kulistofa Ndewalana, the Maluka Chief of the area. She informed them that her driver had run away after admitting that he had killed someone with the tractor. She said that it was not licensed and did not bear a registration number and that she knew nothing about the<br>second respondent using it on the road. There were no lighting appliances on the tractor. From that fact the learned Judge inferred that it was an ordinary farm tractor which was not intended for use on the roads. He held that, although the circumstances clearly pointed to negligent driving by the second respondent, the appellant had not shown that he was employed to drive the tractor on the road as part of his employment since, from the nature of the tractor, it appeared that he was engaged on his own business at the time of the accident. That being so, he held that the first respondent was not liable to the appellant.

It is, of course, correct that the first respondent is not liable for the negligent driving of her servant unless the servant was acting within the scope of his employment and it appears from the decision in Milner v. The Great Northern Railway Company, (1884), 50 L. T. 367, that the initial onus of establishing that issue was upon the appellant. We think that onus would be discharged in the first instance if the appellant established circumstances which showed prima facie that the second respondent was acting within the scope of his employment at the time of the accident. The onus would then shift to the first respondent to show, if she could, that he was not so acting. In our view the facts proved, if unexplained; justified an inference that the second respondent was acting within the scope of his employment. At the time of the accident he was driving a tractor which he was employed by the first respondent to drive. There was nothing in the evidence to negative the presumption that he was then engaged on his employer's business. We think the learned Judge was not justified in concluding from the nature of the tractor that the second respondent was engaged on his own business. Neither the fact that the tractor was not licensed for use on the road nor the fact that it was being driven at about 7.30 p.m. necessarily indicates that the second respondent was engaged on his own affairs. There could be a number of explanations of his driving the tractor on the road at that time while acting in the course of his employment. For instance, the road may be the only means of access from one part of the first respondent's farm to another and the second respondent might have been returning at that hour because of a mechanical breakdown of the tractor. But it is unnecessary to speculate on the reasons for his driving on the road at that time. Prima facie he was driving on his employer's business and, if he was not, that was a matter especially within the knowledge of the employer and the burden of proving it was upon her by virtue of section 105 of the Evidence Ordinance. The appellant therefore established a prima facie case to be answered and the learned Judge was wrong in holding to the contrary.

Mr. Hunt submitted that, if the Court held that the appellant had established. a prima facie case, then there should be an order for a retrial or further hearing. This submission has caused us some difficulty since the learned trial Judge did. not, as he ought to have done, request the first respondent's advocate to make his election, either to submit no case and call no evidence or call his evidence in rebuttal and make no submission. The practice in England in cases tried by a Judge alone is clearly set out in Laurie v. Raglan Building Co. Ltd., (1942) I K. B. 152 at p. 155 by Lord Greene, M. R.: -

"The course that the trial took was this. After the evidence for the plaintiff had been concluded on the question of liability, counsel for the defendants submitted that there was no case for him to answer. It is unfortunate, I think, that the learned Judge did not follow the practice which ought to be followed in such cases, as has been quite clearly laid down in this Court, of refusing to rule on the submission unless counsel for the defendant said he was going to call no evidence. That must be regarded as the proper practice to follow and it is to be found very lucidly set out, if I may say so, in the judgment of Goddard, L. J., in Parry v. Aluminium Corporation. I do not, however, wish it to be thought that there is any particular magic about that question being asked, because it seems to me that counsel can make it perfectly clear by words which he uses or by the way in which he acts, that he does not intend to call any evidence, and he must then be taken to have given a negative answer to the question which the the Judge might otherwise have put to him".

In that case the Court reversed the ruling of the trial Judge that a prima facie case had not been established, refused to order a new trial and dealt with it on the evidence as it stood. The rule is now of general application though there are certain exceptions: for instance, in defamation cases, if it was submitted that there was no evidence of malice, the Judge was bound to rule, and in slander cases, if the submission was made that the words were not actionable without proof of special damage, the judge was bound to rule if no special damage was alleged: see Alexander v. Rayson, (1936) 1 K. B. 169. There are two reasons for the rule. In the first place, as the Judge sitting alone is judge of fact it is not right that he should be asked to express any opinion on the evidence until the evidence is completed: Alexander $v$ . Rayson (supra) in the second place, if evidence for the defendant has not been taken and the Appellate Court disagrees with the ruling of the trial Judge it is, in effect, prevented from exercising its power of rehearing and has no alternative but to send the case back for retrial, which will result in additional costs to the parties: Young v. Rank, (1950) 2 K. B. 510. In Civil Appeal No. 20 of 1955, Newell v. Newell (unreported) this Court indicated that the English practice should be followed.

Mr. Hunt informed us that if the trial Judge had put him to his election he would have said that he intended to call evidence. As the trail Judge did not put him to his election, we think it might be unjust to debar him from calling evidence on the issue which he submitted had not been proved by the appellant, namely that the second respondent was acting within the scope of his employment at the time of the accident, but, in the circumstances, we think it would be equally unfair to the appellant to allow other issues to be reagitated.