Wakilii

Nakalema v Michalistanos and Another (Civil Appeal No. 37 of 1956)

East African Court of Appeal · [1956] EACA 172 · 1950 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court of Uganda dismissal of claim for damages for death caused by negligent driving
Decision
Matter remitted to High Court for further hearing on scope of employment issue

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where a servant employed to drive a tractor is driving that tractor at the time of an accident, a prima facie case is established that he was acting within the scope of employment. The burden then shifts to the employer under Evidence Ordinance section 105 to prove the servant was not so acting. The trial Judge erred in dismissing the claim without putting the defendant to election whether to call evidence.

Outcome

Matter remitted to High Court for further hearing on scope of employment issue

Facts

On 5 June 1954, the appellant's husband was 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. The deceased was walking three yards off the road when struck. The tractor had no lights and was unlicensed. The accident occurred at approximately 7.30 p.m. After the accident, the first respondent told police that her driver had run away after admitting he had killed someone with the tractor, that it was not licensed, and that she knew nothing about the second respondent using it on the road. The trial Judge found negligent driving but dismissed the suit, holding the appellant had not proved the second respondent was acting within the scope of his employment.

Issues

  1. Whether the appellant established a prima facie case that the second respondent was acting within the scope of his employment at the time of the accident.
  2. Whether the burden of proof shifted to the first respondent to show the second respondent was not acting within the scope of employment.
  3. Whether the trial Judge erred in dismissing the suit without requiring the first respondent to call evidence.

Orders

  • Appeal allowed in part.
  • Judgment and decree set aside so far as they related to the first respondent.
  • Proceedings remitted to the High Court to hear further evidence on whether the second respondent was acting within the scope of his employment.
  • Trial Judge directed to hear evidence offered by or on behalf of the first respondent and any rebuttal evidence from the appellant.
  • Trial Judge to make a finding and, if in favour of the appellant, to assess damages and enter judgment accordingly.
  • No order as to costs of the appeal.

Rules and key headnotes

Vicarious Liability — Master and Servant — Scope of Employment — Prima Facie Case
Where a servant employed to drive a vehicle is driving that vehicle at the time of an accident, this establishes a prima facie case that the servant was acting within the scope of employment, and the burden shifts to the employer to prove otherwise.
Burden of Proof — Matters Especially Within Knowledge — Evidence Ordinance Section 105
Where facts are established showing prima facie that a servant was acting within the scope of employment, the burden of proving the servant was not so acting shifts to the employer by virtue of Evidence Ordinance section 105, as this is a matter especially within the knowledge of the employer.
Vicarious Liability — Unlicensed Vehicle — Driving Outside Normal Hours — Effect on Scope of Employment
Neither the fact that a vehicle is unlicensed for use on a public road nor the fact that it is being driven outside normal working hours necessarily indicates that a servant is engaged on his own affairs rather than his employer's business.
Submission of No Case to Answer — Judge Sitting Alone — Duty to Put Defendant to Election
Where a submission of no case to answer is made in a trial by judge alone, the proper practice is for the judge to refuse to rule unless counsel for the defendant states whether evidence will be called, and the judge should put the defendant to election before ruling on the submission.
Submission of No Case to Answer — Reasons for Requiring Election
The rule requiring a judge to put a defendant to election before ruling on a submission of no case exists for two reasons: first, the judge as trier of fact should not express an opinion on evidence until all evidence is completed; second, if the appellate court disagrees with the ruling and no defence evidence was taken, it cannot exercise its power of rehearing and must order a retrial at additional cost.

Legislation cited (2)

  • Uganda Law Reform (Miscellaneous Provisions) Ordinance 1953
  • Uganda Evidence Ordinance s.105

Cases cited (5)

  • Milner v The Great Northern Railway Company (1884) 50 LT 367
  • Laurie v Raglan Building Co Ltd [1942] 1 KB 152
  • Alexander v Rayson [1936] 1 KB 169
  • Young v Rank [1950] 2 KB 510
  • Newell v Newell (Civil Appeal No. 20 of 1955)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

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