Birungi v Sekubwa and Ors (Civil Appeal 3 of 2001)

Supreme Court · [2002] UGSC 22 · 2002 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from the Court of Appeal in a negligence suit for damage to a motor vehicle.

Decision

Appeal dismissed; the Court of Appeal and High Court judgment for the 1st respondent (Shs 11,024,000 with interest at 8% from filing, jointly and severally against the appellant and 3rd respondent) upheld.

The full judgment

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court dismissed the second appeal. It held that the maxim ex turpi causa non oritur actio did not bar the 1st respondent's claim, because his cause of action lay in the negligence of the appellant's driver and he did not need to rely on his own illegality (driving with a dealer's number plate) to prove it; the negligent act was independent of that illegality. The court further held that possession or control of the damaged vehicle conferred a right to claim for the damage, so registered ownership was not essential, particularly where the 1st respondent's ownership had been unchallenged at trial. The appellant was vicariously liable for her driver's negligence.

Facts

The 2nd respondent and her husband owned a Mazda mini bus (407 UAF) and gave it to the 4th respondent to repair and sell. The appellant agreed to trade in her pick-up plus cash for the mini bus, paid part of the price, took possession, and her driver, the 3rd respondent, operated it. On 12 December 1994, the 3rd respondent, swerving to avoid a pothole, left his lane and collided with the 1st respondent's Mercedes Benz saloon, damaging it. At the time the Benz bore a garage/dealer number plate, for which the 1st respondent was prosecuted and convicted; the 3rd respondent was convicted of careless driving. After the accident the appellant tried to repudiate the purchase and denied owning or controlling the mini bus or that the 3rd respondent was her driver. The trial court found the appellant owned and controlled the vehicle, the 3rd respondent was negligent and acting as her servant, and entered judgment against the appellant and 3rd respondent for the damage to the Benz.

Issues

Whether the maxim ex turpi causa non oritur actio barred the 1st respondent's negligence claim because, at the time of the accident, he was driving his car with a dealer's/garage number plate in breach of the law.
Whether the 1st respondent could maintain a claim for damage to the vehicle on the basis of his possession of it, even if he was not its registered owner.

Orders

Appeal dismissed.
Decision of the Court of Appeal upholding the High Court judgment affirmed.
Appellant to pay the costs of the first, second and fourth respondents.

Key headnotes

Tort — Illegality — Ex turpi causa non oritur actio — Independence of illegality from the cause of action

A claimant is not debarred from maintaining a negligence claim by the maxim ex turpi causa non oritur actio merely because he was committing an offence at the time of injury, where he can prove the defendant's breach of a duty of care without relying on his own illegality as part of his cause of action.

Tort — Negligence — Standing to sue — Possession versus registered ownership

A person in possession or control of a vehicle or property may maintain an action to recover damages for harm caused to it; registered ownership is not a precondition to the claim.

Tort — Vicarious liability — Negligence of driver in the course of employment

An owner who entrusts a vehicle to a driver acting in the course of his employment is vicariously liable for damage caused by the driver's negligence.

Civil Procedure — Appeal — Raising a new issue on appeal — Effect of unchallenged trial evidence

Where evidence (such as ownership of property) is not challenged in the pleadings or at trial, a party is taken to have accepted it and cannot effectively raise the issue for the first time on appeal.

Legislation cited (5)

Rules of the Supreme Court of Uganda r.81
Road and Traffic Safety Act
Occupiers' Liability Act 1984 s.1 (UK)
British Nationality Act 1948 s.6(2) (UK)
Mental Health Act 1983 ss.3, 117 (UK)

Cases cited (5)

Whiston v Whiston [1998] All ER 423
R v Secretary of State for the Home Department, Ex parte Puttick [1981] 1 All ER 778
Clunis v Camden and Islington Health Authority [1998] 3 All ER 180
Revill v Newberry [1996] 1 All ER 291
Ashton v Turner and Another [1981] QB 137

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.