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Uganda Breweries Limited v Uganda Railways Corporation (Civil Appeal 6 of 2001)

Supreme Court · [2002] UGSC 40 · 2002 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from the Court of Appeal, which had upheld the High Court's dismissal of the appellant's negligence suit and its award on the respondent's counter-claim.
Decision
Appeal partially allowed; special damages award reduced from DM400,000 (Shs. 280 million) to DM213,116.36 in favour of the respondent.

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Holding

On a second appeal in a railway level-crossing collision, the Supreme Court held the Court of Appeal had properly re-evaluated the evidence as first appellate court and rightly upheld the finding that the appellant's driver was solely negligent; there is no set format for such re-evaluation. The trial judge's prejudicial remark, though deplorable, was not the basis of his decision and caused no failure of justice. The respondent's variance from its pleadings caused no prejudice. However, the award of special damages was not properly assessed and rested on wrong principles: only the proven CIF cost of spare parts (DM213,116.36) was recoverable. The appeal partially succeeded.

Facts

On 26 June 1992 the appellant's semi-trailer was moving along Kampala–Port Bell Road when, at a railway level crossing, the respondent's locomotive rammed into it, extensively damaging both the trailer and the locomotive. The appellant sued the respondent in negligence, alleging the locomotive driver was at fault and the respondent vicariously liable, and claimed special damages for repairs to its trailer. The respondent counter-claimed, blaming the appellant's driver and seeking the cost of repairing the locomotive, pleaded as DM399,598.80 for materials and Ug. Shs. 558,536 for labour. The High Court found the appellant's driver solely to blame, dismissed the appellant's suit, and awarded the respondent Shs. 280 million (DM400,000) on the counter-claim with costs and interest. The respondent's evidence (DW1) described the locomotive ramming the trailer, varying from its pleading that the trailer crushed into the locomotive. Quantum was based on DW2's catalogue-derived assessment; DW2 was not cross-examined on it.

Issues

  1. Whether the Court of Appeal, as the first appellate court, adequately re-evaluated and scrutinised the evidence to reach its own conclusion.
  2. Whether the trial judge's remark taking judicial notice of the appellant's drivers' alleged reckless driving rendered the trial a nullity or breached the right to a fair hearing.
  3. Whether the respondent's evidence on how the collision occurred constituted a fatal departure from its pleadings that should have been disregarded.
  4. Whether an adverse inference should have been drawn against the respondent for failing to call a particular witness.
  5. Whether the trial court erred in relying on the police accident report and sketch plan that were not formally exhibited in evidence.
  6. Whether the award of special damages of DM400,000 (Ug. Shs. 280 million) was properly pleaded, proved and assessed.

Orders

  • Grounds 1 and 2 of the appeal dismissed.
  • Ground 3(ii) of the appeal allowed.
  • Award of Shs. 280 million (DM400,000) special damages set aside.
  • Special damages of DM213,116.36 substituted in favour of the respondent.
  • Appellant to have 1/4 of the costs and the respondent 3/4 of the costs here and in the courts below.

Key headnotes

Appeals — Duty of First Appellate Court — Re-evaluation of Evidence
A first appellate court must scrutinise and re-evaluate the whole of the evidence and reach its own conclusion, but there is no set format to which the re-evaluation must conform; its extent and manner depend on the circumstances and style of the court, and adequacy is a question of substance rather than length.
Appeals — Second Appeal — Scope of Interference with Concurrent Findings
On a second appeal the court will not re-evaluate the evidence wholesale as a first appellate court; it interferes only where the first appellate court misapplied or failed to apply the principles governing re-evaluation, and concurrent findings of fact will not be disturbed save in exceptional circumstances.
Negligence — Findings of Fact — Interference on Appeal
Where a trial court finds that a party was not guilty of negligence contributing to an accident, the first appellate court should not interfere with that finding, being largely a question of fact and degree, unless it is satisfied that the trial judge was wrong, even if it doubts it would have reached the same decision at first instance.
Pleadings — Departure from Pleadings — Prejudice Test
A party is bound by its pleadings, but a variance between pleading and proof is not fatal where the variance is immaterial and the opposing party had fair notice of the case to meet and suffered no prejudice; only a departure amounting to a wholly different unpleaded cause of action is fatal.
Documentary Evidence — Admissions by Pleadings — Section 56 Evidence Act
Where the parties refer to and rely on a document in their pleadings and evidence on the apparent assumption that it is in evidence, they are deemed under section 56 of the Evidence Act to have admitted it, and the court may properly rely on it though it was not formally exhibited.
Witnesses — Number of Witnesses and Adverse Inference — Section 132 Evidence Act
No particular number of witnesses is required to prove a fact under section 132 of the Evidence Act, and whether an adverse inference should be drawn from a party's failure to call a particular witness depends on the circumstances of each case and is not automatic.
Special Damages — Strict Proof — Failure to Cross-examine on Quantum
Special damages must be specifically pleaded and strictly proved and properly assessed; a party's failure to cross-examine the opposing witness on quantum does not necessarily amount to an admission of the amount claimed, and an appellate court may interfere with an award that was not properly assessed or was made on wrong principles.

Legislation cited (10)

  • Constitution 1995 article 28(1)
  • Civil Procedure Rules Order 6 rule 6
  • Evidence Act s.55
  • Evidence Act s.56
  • Evidence Act s.132
  • Judicature Statute 1966 s.8
  • Judicature Statute 1966 s.12
  • Supreme Court Rules rule 29(1)
  • Court of Appeal Rules rule 29(1)
  • Court of Appeal Rules rule 81

Cases cited (33)

  • A. W. Biteremo v Damascus Munganda Situma (Civil Appeal No. 15 of 1991)
  • Abdul Hamid Saif v Alimohamed Slidem (1955) 22 EACA 270
  • Board v Issa Bukenya t/a New Mars Warehouse (Civil Appeal No. 26 of 1992)
  • British Fame (Owners) v Macgregor (1943) 1 All E.R. 33
  • Bukenya and Others v Uganda (1972) E.A. 549
  • Captain Harry Gandy v Caspair Air Charters Ltd (1956) 23 EACA 139
  • Castelino v Rodrigues (1972) E.A. 223
  • Charles Bitwire v Uganda (Criminal Appeal No. 23 of 1985)
  • Coghlan v Cumberland (1898) 1 Ch 704 (CA)
  • Dhanji Ramji v Rambhai & Co. (U) Ltd (1970) EA 151
  • Des Raj Sharma v Regina (1953) 20 EACA 310
  • Ephraim Orgoru Odongo & Another v Francis Benega Bonge (Civil Appeal No. 10 of 1987)
  • Esso Petroleum Co. Ltd v Southport Corporation (1956) A.C. 218
  • Francis Sembuya v Allports Services Ltd (Civil Appeal No. 6 of 1999)
  • G.M. Combined (U) Ltd v A.K. Detergent & Others (Civil Appeal No. 7 of 1998)
  • G. W. Katatumba t/a Technical Plan v Uganda Co-operative Transport Union Ltd (Civil Appeal No. 23 of 1993)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1993)
  • James Kahigiriiza v Sezi Busasu [1982] HCB 148
  • Kairu v Uganda (1978) HCB 123
  • Karisa v Solanki (1969) EA 320
  • Kibimba Rice Co. Ltd v Umar Salim (Civil Appeal No. 7 of 1998)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Milly Masembe v Sugar Corporation of Uganda & Another (Civil Appeal No. 1 of 2000)
  • Okeno v Republic (1972) EA 32
  • Pandya v R (1957) EA 336
  • Peters v Sunday Post Ltd (1958) EA 424
  • Pushpa d/o Raojibhai v The Fleet Transport Co. Ltd (1960) EA 1025
  • Selle and Another v Associated Motor Boat Co. Ltd and Others (1968) EA 123
  • Trevor Price & Anor v Raymond Kelsall (1957) EA 752
  • Uganda American Insurance Company Ltd v Phocas Ruganzu (Civil Appeal No. 10 of 1992)
  • Watt (or Thomas) v Thomas (1947) AC 484 (HL)
  • Zarina Akbarali Shariff & Another v Noshir Pinoshesha Setha (1963) EA
  • Bank of Uganda v F . W. Masaba (supra)
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