Wakilii

Masembe v Sugar Corporation and Another (Civil Appeal 1 of 2000)

Supreme Court · [2000] UGSC 36 · 2000 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision reversing a High Court judgment in a negligence suit for personal injury and loss of property arising from a road accident.
Decision
Court of Appeal decision set aside; trial court judgment restored with variations, holding the respondents jointly and severally liable for 40% of the damages.

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On a second appeal in a road-accident negligence suit, the Court held that the Court of Appeal had wrongly interfered with the trial judge's findings of fact, which were properly grounded in the credibility of independent witnesses. Leaving an unlit, broken-down tractor and trailer unattended on the road without adequate warning was negligence. However, the trial judge had under-apportioned the minibus driver's blame; the Court re-apportioned liability to 60% against the minibus driver and 40% against the respondents. On cross-appeal, it held the respondents jointly and severally liable rather than in equal shares, increased loss-of-earnings damages from three to five months, and declined to disturb the trial judge's interest rate.

Facts

On 28 December 1993, at about 8.00 p.m. on the Kampala–Jinja highway near Namagunga, the appellant, a businesswoman, was a passenger in a minibus taxi. The taxi collided with the rear of a stationary tractor-drawn trailer loaded with sugar cane belonging to the first respondent. The tractor, driven by the second respondent (the first respondent's employee acting in the course of his employment), had broken down earlier that day. The appellant's witnesses, including independent police officers, testified that the vehicle was left unlit and unattended on the carriageway with no warning signs and no visible reflectors, partly obstructing the lane. The respondents' witnesses claimed tree branches had been placed as warnings and that reflectors were visible, relying on photographs taken the next morning. The appellant sustained serious injuries, was hospitalised for two months and used crutches for a further three months, and lost property in the accident. The trial judge found the tractor driver 80% to blame and the minibus driver 20% to blame.

Issues

  1. Whether the Court of Appeal, as first appellate court, properly re-evaluated the evidence and was entitled to interfere with the trial judge's findings of fact on the cause of the accident.
  2. Whether leaving the broken-down tractor and trailer on the road without adequate warning constituted negligence by the second respondent.
  3. Whether the trial judge correctly apportioned blame for the accident between the tractor driver and the minibus driver.
  4. Whether the Court of Appeal erred in declining to consider the appellant's cross-appeal.
  5. Whether the trial judge erred in ordering the defendants to pay the awarded damages in equal shares rather than jointly and severally.
  6. Whether the award of loss of earnings and the rate of interest should be varied.

Orders

  • The appeal is allowed in part.
  • The cross-appeal is allowed in part.
  • The judgment and orders of the Court of Appeal are set aside and substituted with the judgment and orders of the trial court, with variations.
  • The first and second respondents are jointly and severally liable to the appellant for only 40% of all the special and general damages awarded.
  • All awards for special damages shall carry interest from the date of filing suit until payment in full.
  • The award for general damages shall carry interest from the date of judgment until payment in full.
  • The appellant shall have the costs of the appeal and the costs in the court below.

Key headnotes

Civil Procedure — Second Appeal — Function of the Supreme Court under Rule 29(1)
On a second appeal, the Supreme Court does not re-evaluate the evidence as a first appellate court except in the clearest of cases; it decides whether the first appellate court correctly applied or failed to apply the principles governing re-evaluation of evidence.
Civil Procedure — First Appellate Court — Interference with Findings of Fact
A first appellate court is not bound by a trial judge's findings of fact based on the credibility of witnesses and may reverse them only where the trial judge failed to take account of particular circumstances or probabilities material to the evidence, or where his impression of a witness's demeanour is inconsistent with the evidence generally.
Tort Law — Negligence — Duty of Care — Unlit Vehicle Left on the Highway
Leaving an unlit vehicle unattended on the road without any warning that it has broken down is an act of negligence on the part of the person who leaves it in such a position.
Tort Law — Negligence — Apportionment of Liability — Appellate Interference
An apportionment of liability made by a trial court will not be interfered with on appeal save in exceptional cases, such as where there is an error of principle or the apportionment is manifestly erroneous.
Tort Law — Vicarious Liability — Joint and Several Liability of Master and Servant
Where a master is found vicariously liable for the negligent act of his servant committed in the course of employment, the master and servant are liable jointly and severally for the damages, and it is an error to order them to pay the decretal amount in equal shares.
Damages & Quantum — Special Damages — Loss of Earnings — Proof
Loss of earnings claimed as special damages must be specifically pleaded and proved, and where the claimant proves she was out of work for the full period claimed, she is entitled to recover loss of earnings for that entire period.
Damages & Quantum — Interest — Discretion — General versus Special Damages
An award of interest is discretionary; general damages carry interest from the date of judgment because the right to them arises only upon assessment, while liquidated sums and special damages carry interest from the date of filing suit.

Legislation cited (5)

  • Judicature Act 1996 s.7(1)
  • Judicature Act 1996 s.8
  • Supreme Court Rules r.29(1)
  • Supreme Court Rules r.1(3)
  • Court of Appeal Rules r.29(1)

Cases cited (30)

  • Pandya v R (1957) E.A. 336
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Habre International Co v Ebrahim Alarakhia Kassam and Others (Civil Appeal No. 4 of 1999)
  • Banco Arabe Espanol v. Bank of Uganda, Civil Appeal N of 1998 (SCU)
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Bogere Charles v Uganda (Criminal Appeal No. 10 of 1998)
  • Kairu v Uganda (1978) H.C.B. 123
  • Selle and Another v Associated Motor Boat Company Ltd (1968) E.A. 123
  • Coghlan v Cumberland (1898) 1 Ch 704 (CA)
  • Watt or Thomas v Thomas (1947) A.C. 484
  • Powell and Wife v Streatham Manor Nursing Home (1935) A.C. 243 (HL)
  • Benmax v Austin Motor Co Ltd (1955) A.C. 370 (HL)
  • Abdul Hamid Saif v Ali Mohammed Sholan (1955) 22 EACA 270
  • Trevor Price and Another v Raymond Kelsall (1957) E.A. 752
  • Peters v Sunday Post Limited (1958) E.A. 424
  • Pandya v, R. (1957) E.A 570
  • Khambi and Another v Mahithi and Another (1969) E.A. 70
  • Shariff v Sethma (1963) E.A. 239
  • Brown v Thompson (1968) 2 All E.R. 708
  • Tant v Chitty (1931) All E.R. (Rep) 826
  • Andereya Sinzimusi v Gomba Bus Services (Civil Appeal No. 8 of 1979)
  • Muwonge v Attorney General of Uganda (1967) E.A. 17
  • Patel v Yafesi and Others (1972) E.A. 31
  • Harbutt's Plasticine Ltd v Wayne Tank and Pump Co Ltd (1970) 1 QB 447
  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd (No. 2) (1970) E.A. 469
  • SIETCO v. Noble Builders (U) Ltd
  • Prem Lata v Mbiyu (1965) E.A. 592
  • J.K. Patel v Spear Motors Ltd (Civil Appeal No. 4 of 1991)
  • Geraldine Namubiru and Another v Uganda Transport Company (1975) Ltd (Civil Appeal No. 29 of 1994)
  • Christopher Kiggundu and Another v Uganda Transport Company (1975) Ltd (Civil Appeal No. 7 of 1993)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.