Wakilii

Teddy Birungi v Sekubwa and Others (Civil Appeal No. 32 of 1999)

Court of Appeal · [2000] UGCA 53 · 2000 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court judgment awarding damages for negligence
Decision
Appeal dismissed; High Court judgment holding the appellant vicariously liable upheld

Observed later treatment

No later-treatment classification is recorded for this 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 Court of Appeal dismissed the appeal, holding that the maxim ex turpi causa non oritur actio did not bar the plaintiff's negligence claim because he did not need to rely on his illegal use of a dealer's plate as part of his cause of action; the maxim applies only where the illegality is inherent in the cause of action. The court found no error in the trial judge entering final judgment jointly and severally against the appellant and the third defendant following interlocutory judgment, and upheld the finding of vicarious liability because the appellant owned and controlled the vehicle driven by her servant in the course of employment. Costs followed the event.

Outcome

Appeal dismissed; High Court judgment holding the appellant vicariously liable upheld

Facts

Angela Amuge and her husband owned Mazda Mini Bus 407 UAF, registered in Amuge's name, and gave it to Amir Nsereko to repair and sell. The appellant, Teddy Sentongo Birungi, agreed to trade her Datsun pick-up plus cash for 407 UAF, paying Shs.1,500,000 and taking possession. While being driven by her driver, the third defendant Njawuzi Prosper, the vehicle collided with the plaintiff Wilberforce Sekubwa's Mercedes Benz on 12 December 1994. The third defendant left his lane to avoid a pothole and swerved into the plaintiff's lane. The plaintiff's Benz bore a garage/dealer number plate at the time. The third defendant was convicted of careless driving and the plaintiff was convicted of using an unregistered vehicle with a garage plate after 6pm. The High Court found the third defendant negligent, found the appellant owned and controlled the vehicle at the time, and held her vicariously liable, awarding Shs.11,024,000 in damages jointly and severally against the appellant and third defendant.

Issues

  1. Whether the plaintiff's claim was founded on an illegality that barred recovery under the maxim ex turpi causa non oritur actio because his vehicle was on the road bearing a dealer's plate.
  2. Whether the trial judge erred in entering judgment jointly and severally against the appellant and the third defendant.
  3. Whether the principle of vicarious liability was correctly applied to hold the appellant liable for the third defendant's negligence.
  4. Whether the trial judge properly evaluated the evidence.
  5. Whether costs were properly awarded to the first, second and fourth defendants against the appellant.

Orders

  • Appeal dismissed with costs in favour of the first, second and fourth respondents.

Rules and key headnotes

Tort Law — Illegality — Ex turpi causa non oritur actio — Scope in Negligence Claims
The maxim ex turpi causa non oritur actio bars recovery only where the illegality is inherent in the cause of action, that is, where the plaintiff cannot establish his case without relying on his own illegal act; a plaintiff whose vehicle was unlawfully on the road need not plead that illegality to prove negligence and may therefore maintain his claim.
Tort Law — Vicarious Liability — Master and Servant — Course of Employment
An employer is vicariously liable for the negligence of a servant or agent where it is proved that the servant was negligent, that the defendant was his employer, and that the servant was in charge of the vehicle in the course of his employment when the accident occurred.
Civil Procedure — Joint and Several Judgment — Interlocutory Judgment under Order 9 rule 6
Where interlocutory judgment is entered against a non-appearing defendant under Order 9 rule 6 of the Civil Procedure Rules, final judgment may properly be entered jointly and severally against that defendant and a contesting co-defendant only after assessment of damages, and this does not subject the non-appearing defendant to double jeopardy.
Tort Law — Negligence — Ownership versus Possession of Damaged Property
In a claim for negligence, ownership of the damaged subject matter is irrelevant; it is possession that matters, so a plaintiff in charge of a vehicle at the time of the accident may maintain an action against the party who caused the damage.
Civil Procedure — Appeals — Points of Law Raised for the First Time on Appeal
A question of law may be raised for the first time in an appellate court, and grounds involving the application of a legal maxim to established facts are properly included in a memorandum of appeal even where not argued in the lower court.

Legislation cited (2)

Cases cited (7)

  • Paul K. Ssemogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2000)
  • Scott v Brown, Doering, McNab & Co [1892] 2 QB 728
  • Mistry Amar Singh v Serwano Wofunha Kulubya (1963) EA 408
  • Ashmore, Benson, Pease & Co Ltd v AV Dawson Ltd [1973] 2 All ER 856
  • Belvoir Finance Co Ltd v Harold G Cole & Co Ltd [1969] 2 All ER 904
  • Taylor v Chester (1869) LR 4 QB 309
  • Ashton v Turner and Another [1981] QB 137

Full judgment

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

Teddy Birungi v Sekubwa and Others (Civil Appeal No. 32 of 1999) [2000] UGCA 53 (24 May 2000)
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.