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THE REPUBLIC OF UGANDA
IN THE SUPREME
COURT OF UGANDA
AT MENGO
(CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA, AND KANYEIHAMBA, JJSC) .
CIVIL APPEAL NO. 3 OF 2001
BETWEEN
TEDDY SENTONGO BIRUNGI:
APPELLANT
AND
1. WILBERFORCE SEKUBWA: 1st
RESPONDENT
2. ANGELA AMUGE: 2nd
RESPONDENT
3. PROSPER NJAWUZI: 3rd
RESPONDENT
4. AMIR NSEREKO: 4™
RESPONDENT
(Appeal from the decision of Court of Appeal of Uganda at Kampala (Mpagi-Bahigeine, Berko and Twinomujuni JJ.A), dated 21-07-2000, ir, Civil Appeal No. 32 of 1999, arising from the judgment of the High Court at Kampala ( Kania, J.) dated 19-02-1999, in H.C.C.S. No. 167 of 1995).
REASONS FOR THE JUDGMENT OF THE COURT
This was a second appeal. In the High Court the 1st respondent
successfully sued the appellant, the 2nd respondent, 3rd
respondent and 4th respondent for damages caused to his car in a
collision between it and the appellant's motor vehicle. The cause of action was
founded
in negligence on the part of the 3rd respondent when driving
the appellant's motor vehicle in the course of his employment as her servant or
agent. The appellant appealed
to the Court of Appeal against the High Court
decision. She lost that appeal. Consequently, she appealed to
this court.
We heard the appeal and dismissed it, reserving our reasons for
doing so, which we now proceed to give.
The circumstances that led to the High Court action were briefly these. The
2nd respondent and Martin Emakulat, her husband, were the owners of
Mazda mini bus 407 UAF, which was, in fact, registered in the former's
names.
They gave
the vehicle to the 4th respondent to repair and sell it,
recover his costs and give them any balance of the purchase price. The appellant
was also the owner
of a Dutsan Pick-
up UVY 185, which she wanted to dispose
of. She agreed to trade-in her pick up for 407 UAF and shs.2,000, 000=. The
appellant gave
the 4th respondent the registration book and keys of
her pick-up, plus Shs. 1,500, 000=, and took in exchange the mini bus No. 407
UAF. The
registration Card of 407 UAF was to be given to her after payment of
the balance of Shs. 500, 000=. In the meantime
the
2nd respondent retained the registration book of 407 UAF. The
appellant took possession of the vehicle and it was being driven by her
driver,
the 3rd respondent when the accident happened on 12-12-94, at 10.00
p.m. involving 407 UAF and the 1st respondent's Benz saloon
car. At the time of the accident, the Benz Saloon car was bearing a garage
number plate No. U170 DI/UPF922.
The 1st respondent was prosecuted
and convicted for driving an unregistered vehicle with a garage number plate at
10.00 p.m. The 3rd respondent was also prosecuted and convicted of
careless driving.
After the accident the appellant tried to repudiate the agreement to purchase the vehicle 407 UAF and used the Police and an Army Officer to force the 4th respondent to refund the Shs. 1, 500, 000= she had paid towards the purchase of vehicle 407 UAF and a return of her UVY 185. She maintained that at the time of the accident the vehicle 407 UAF was not in her possession. It was instead in the possession of the 4th respondent. She also denied that the 3rd respondent was her driver. At the trial, the following issues were agreed upon and determined:
(1) who owned the vehicle 407 UAF and was in control of it when the accident happened? (2) whose agent or servant was in charge of the vehicle when the accident happened? (3) was the driver in charge of the vehicle negligent? (4) If the answer to (3) was in the affirmative, was the 2nd respondent entitled to damages and, if so, what quantum?
In his lead judgment in the Court of Appeal
Berko, J.A., suggested that a fifth issue should have been whether the driver
was driving
the car in the course of his employment. That would have clearly
brought ovc the issue of vicarious liability.
In the learned Justice of Appeal's view, since judgment had already been
entered against the 3rd respondent , issue (3) did not
arise.
The learned trial judge answered the 2nd issue that the
3rd respondent was in charge of the vehicle in the course of his
employment as the servant or agent of the appellant when the accident
happened;
and that he was negligent because he left his lane when trying to avoid a
pothole in his lane and suddenly
swerved colliding with the
1st respondent in his lane. The appellant was consequently liable for
the 3rd respondent's negligence.
Regarding the first issue, he found that the appellant was the owner of
vehicle No. 407 UAF and that or 12-12-94, the vehicle was
under her control when
the accident happened. The answer to the 4th issue was that the
1st respondent was entitled to damages from the appellant for
the damage to his car.
The learned trial judge preceded to assess damages and made an award which
was not challenged in the Court of Appeal. He entered judgment
for the
1st respondent against the appellant and the 3rd
respondent jointly and severally for the sum of Shs. 11, 024,000= with interest
at 8% from the time of filing the suit until payment
in full. He also awarded
costs of the suit in favour of the 1st , 2nd and
4th respondents.
The appellant's appeal to the Court of Appeal was unsuccessful. Hence this
appeal, which we also dismissed, reserving our reasons
for doing
so.
Eleven grounds of appeal were set out in the memorandum of appeal to this
Court. The manner in which the memorandum of appeal was
drawn offended rule 81
of the Rules of this Court. We nevertheless allowed the grounds to be argued as
they were. The first eight
of the ground of appeal were repetitions in different
forms, the substance of which was that the 1st respondent's cause of
action was founded, and based, on illegality. The resistant judgment in his
favour was therefore, a nullity,
contrary to the principle of exturpi
causa non oritur actio.
The appellant's learned Counsel, Ms. Charity Nakabuye
argued the
first eight grounds together. In her submission, she criticized
the trial court and the Court of
Appeal for not having applied the principle of
exturpi Causa non oritur actio. This was a case in which the
1st respondent was driving his motor vehicle with a garage number
plate which was a traffic offence, for which he was charged in court,
convicted
and fined. The learned Counsel submitted that in those circumstances, the
1st respondent was illegally driving on the road at the material
time. He should not take advantage of his illegal conduct. His criminal
act was
in breach of a statutory duty. Learned Counsel criticised the Court of Appeal
for holding that the lot respondent's cause of action did not depend
on the fact that his car had a garage number plate.
In support of her submission, the learned Counsel relied on the cases of
Whiston -vs- Whiston (1998), All E.R.423; R -vs- Secretary of State for
Home Department, Exparte Puttick (1981) 1, A11.E.R.778; Clunis
-vs- Camden and
Isling Health Authority (1998) 3 All.E.R.; and Revill -vs-Nevbery
(1996) 1 All E.R.
Mr. Sam Njuba, Counsel for the 1st respondent submitted that grounds 1 to 8 of the appeal were all based on the issue of illegality. He said that he stood by his submission in the Court of Appeal, which he wished to adopt for purposes of this appeal. He argued that if courts were to rule that any illegality, however remote, would nullify the liability of a party who acts in breach of its duty of care the result would be outrageous and cause injustice. Only an illegality relied on by a claimant should have that effect. However, if a party can sustain his claim outside illegality, then his claim should succeed.
Mr. Njuba distinguished the cases referred to by the appellant's learned Counsel from the instant case. He said that Whiston —vs- Whiston (supra) was based on illegality of a marriage. So was R —vs- Secretary of State for the Home Department, ex parte Puttick (supra). In the instant case, learned Counsel contended, the lst respondent never went out to cause an accident and benefited from it. Regarding the decision in Clunis —vs- Camden and Islington Health Authority (supra), the learned Counsel contended, that a distinction between claims for personal injury based on illegality and claims for other injuries based on illegality should not be allowed to stand. He urged us not to be persuaded by Ms. Nakabuye's arguments.
In the instant case, Mr. Njuba submitted, evidence shows that when the 1st respondent's car was knocked, he was not driving. He had stopped. The case of Revill —vs- Newberry (supra) was clearly in the 1st respondent's favour. In the instant case, the 1st respondent was not relying on illegality. Consequently, he should not be denied his claim.
In his lead judgment, with which the other two members of the Court of Appeal agreed, Berko J.A., considered at some length whether the principle Exturpi Causa non oritur actio applied to the instant case. In the end, he held that the principle did not apply to the case.
Regarding one of the decided cases he considered, Berko, J.A. said:
"The only case cited to us in which the cause
of
action was based on negligence is Ashton
—vs-
Turner and Another (1981) QBD 1311
In my view the application of the maxim in Ashton -vs- Tunner (supra) was justified on the facts of the case. Public policy would not permit one participant in a crime to maintain an action against the other participant in the same crime in relation to act done in connection with the commission of that crime.
The authorities I have referred to show that if the plaintiff can prove his case without relying, as part of his cause of action, that he has been guilty of illegality, then he can maintain his action and enforce his claim. The plaintiff in the instant case, need not, as part of his cause of action, rely on the fact that his car had a garage number plate in order to prove his case.
The argument of Mr. Mbabazi is that the plaintiff's vehicle was on the
road illegally and unlawfully by reason of the fact that it
was bearing a
dealer's plate and therefore no duty of care was owed to him. I need only to
give two examples to demonstrate the absurdity
of the argument. Supposing a
convict prisoner escapes from prison and whilst crossing the road to get to a
get — away car,
he is knocked down by an over-speeding driver and he
sustains injuries. On the basis of Mr. Mbabazi's argument the escaping prisoner
could not maintain action in negligence against the over-speeding driver because
the prisoner, having escaped from prison, was not
legally or lawfully on the
road. Surely there is no connection between his escaping from lawful custody and
his being knocked down
on the road. He need not, in proving his case against the
over-speeding driver, have to call in aid, as part of his cause of action,
the
fact that he had escaped from lawful custody. Again, it is an offence under The
Road and Traffic Safety Act to drive a vehicle whose road licence
has expired. If the argument of Mr. Mbabazi is correct, it would mean that if
such 3. vehicle is damaged
through the negligence of somebcdy whilst being
driven when its road licence was expired, the owner of the vehicle would not be
able
to maintain an action against the driver who damaged the vehicle because
the damaged vehicle was not lawfully on the road. In my
view that cannot be the
law. With due respect to Mr. Mbabazi, I think the maxim was wrongly applied to
the facts in the instant case."
We agree with the learned Justice of Appeal.
The appellant's learned Counsel relied on some decided cases in support of
her arguments. We shall now proceed to consider them. In
Whiston -vs-
Whiston (supra), the respondent to that appeal was a bigamist. That was
a fact
she was not always ready to admit. In
wardship proceedings, and in a defended suit when her offence of
bigamy was in
issue, she denied it; indeed she swore affidavits which were untruthful.
Eventually she admitted her bigamy and a decree
of nullity was granted to the
appellant, Mr. Whiston on that ground. The respondent then claimed to be
entitled to orders for ancillary
relief.
The District judge awarded a lump sum of £25,000. Thorpe J, reduced that to £20,000 on appeal and granted leave to appeal, and the issue which arose or. the appeal was: could a person who knowingly being married, had gone through a ceremony of marriage to another, subsequently claim ancillary relief by virtue of a decree of nullity which had been granted to that other person on the grounds of the claimants bigamy? The stack point in the appeal was, therefore, whether or not the rule of public policy which ordains that one should not benefit from one's own crime was available to the appellant and whether or not the respondent should be debarred from pursuing her claim because of exturpi causa non oritur actio. In his judgment allowing the appeal, with which the other two members of the Court of Appeal agreed, Ward L. J. concluded:
"Today we have this respondent seeking to profit from the crime. Her claims derive from the crime Without her having entered into this bigamy
ceremony she would not have got to the judgment seat at all. She should now be prevented from going any further. I would therefore allow the
appeal. I would accordingly dismiss her application for a lump sum and make no award to her whatever."
In our view the case of Whiston -vs- Whiston (supra) is
distinguishable from the instant case. In the former the respondent's claim was
based on her crime of bigamy whereas in
the instant case the 1st
respondent's claim, was based on negligence committed against him by the
appellant's driver, the 3rd respondent.
In R -vs- Secretary of State for Home Department, ex parte
Puttick (supra) , the applicant was a German Citizen who had
committed serious crimes in Germany. She obtained entry into the United Kingdom
on a false passport in the name of another German Citizen and, using
that name, went through a marriage ceremony
with a United Kingdom citizen at
a Registrar's office and signed the marriage certificate in that name. The
German authorities discovered
her real identity and began extradition
proceedings. In order to avoid extradition the applicant applied to the
Secretary of State
in her real name for registration as a United Kingdom citizen
under s 6(2) of the British Nationality Act, 1948. The Secretary of
State
refused her application and on appeal the Court of Appeal refused to grant her
leave to apply for judicial review of the Secretary
of State's decision. The
applicant then applied to the court which determined that the marriage was valid
but exercised its discretion
by refusing to make a declaration of validity.
Subsequently the Secretary of State, although accepting the court's decision
that
the applicant's marriage was valid, affirmed his refusal to register her as
a United Kingdom citizen unless the court directed otherwise.
The applicant
applied for an order of mandamus requiring the Secretary of State to register
her as a United Kingdom Citizen on the
grounds that she fulfilled the express
terms of s 6(2) of the 1948 Act for registration.
The court held that where there was a statutory duty involving the
recognition of some right, then, notwithstanding the mandatory nature of the
terms imposing
that duty, it was nevertheless subject to the limitation that the
right would not be recognized if the entitlement to it had been
obtained by
criminal activity. Since the applicant had achieved her marriage, and
therefore her entitlement to registration under s 6(2), by the crimes of fraud,
forgery and perjury, and could not claim to be entitled to
registration without relying on her criminality,
the
Secretary of State was entitled, despite the mandatory terms of s 6(2), to
refuse to register her as a United Kingdom citizen.
The application for mandamus
was therefore dismissed.
In Clunis -vs- Camden Islington Health Authority (1998) 3 All E.R.180.
On 24-09-92 the plaintiff, who had a history of mental disorder and of
serious violent behaviour, was discharged from the hospital
where he had been
detained as the result of an order under s.3 of the Mental Health Act, 1983, and
moved into the area covered by
the defendant health authority. Under s.117 of
the 1983 Act, the health authority was under a duty to provide after care
services
for the plaintiff, and a psychiatrist employed by it was designated as
the plaintiff's responsible medical officer. However, the
plaintiff failed to
attend appointments arranged for him by the medical officer, and his condition
deteriorated. On 17 December,
in a sudden and unprovoked attack, the plaintiff
stabbed a man to death at a tube station. He was charged with murder, but at his
trial pleaded guilty to manslaughter on the grounds of diminished responsibility
and was ordered to be detained in a secure hospital.
Subsequently, he brought an
action for damages against the health authority alleging that it had negligently
failed to treat him
with reasonable and responsible care and skill in that,
inter alia, the responsible medical officer had failed to ensure that he
was
assessed before 17 December, and that if he had been, he would either have been
detained or consented to become a patient and
would not have committee
manslaughter. The health authority applied to strike out the plaintiff's claim
as disclosing no cause
of action on the grounds (i) that it was
based on his own illegal act which amounted to the crime of manslaughter, and
(ii) that it arose out of the health authority's statutory
obligation under s.117 of the 1983 Act and those obligations did not give rise
to a common law duty of care. The deputy judge dismissed the application and the
defendant appealed. It was, held inter alia that
the rule of public policy that
the court would not lend its aid to a plaintiff who relied on his own criminal
or immoral act was
not confined to particular cause of action, but only applied
if the plaintiff was implicated in the illegality and was presumed to
have known
that he was doing an unlawful act. In the instant case, the plaintiff's plea of
dimished responsibility accepted that
his mental responsibility was
substantially impaired but did not remove liability from his criminal act, and
therefore, he had to
be taken to have known what he was doing and that it was
wrong. It followed that the health authority had made out its plea that
the
plaintiff's claim was based on his crime of manslaughter.
The case of Revill —vs- Newberry (supra) was another case
on which the appellant's learned Counsel relied for her submissions In that case
the 76 year old defendant
was sleeping in a brick-shed on his allotment in order
to protect valuable items stored in it when he was awakened in the middle
of the
night by the sound of the plaintiff attempting to break in. He took his shot
gun, loaded it and, without being able to see
whether there was anybody directly
in front of the door, fired through a small hole in the door, wounding the
plaintiff in the arm
and chest. The plaintiff was subsequently prosecuted for
the various offences which he had committed that night and
pleaded guilty; the defendant was also prosecuted on charges of wounding but was
acquitted. Thereafter the plaintiff brought proceedings
against the defendant
claiming damages for breach of the duty of care under section 1 (a) of the
Occupiers' Liability Act, 1984 and
negligence. The judge found that although the
defendant had not intended to hit the plaintiff he could reasonably have
anticipated
that he might do so and was thus negligent by reference to the
standard of care to be expected from the reasonable man placed in
the
defendant's situation.
The judge further found that the defendant, had used greater force than was
justified in lawful self defence and rejected the defendant's
submission that he was relieved of all liability on the basis of the maxim
extrupi Causa non oritur actio since the plaintiff had been
involved in a criminal enterprise at the time of injury. On the question of
contributory negligence the
judge found the plaintiff two-thirds to blame. The
defendant appealed. It was held that a plaintiff in a personal injury claim was
not debarred from making any recovery by the fact that he was a trespasser and
engaged in criminal activities at the time the injury
was suffered. The duty of
care owed to a trespasser by an occupier under s.l of the Occupiers Liability
Act 1984 and by persons other
than occupiers at common law, namely to take such
care as was reasonable in all the circumstances of the case to see that the
trespasser
did not suffer injury on the premises, applied even where the
trespasser was engaged in a criminal enterprise. On the facts, the
judge had
been justified in finding that the plaintiff was a person to whom the defendant
owed some duty of care and
that the defendant, who had used
greater violence than was justified in lawful self - defence, was in breach of
that duty, and
in finding substantial contributory negligence on the part of the
plaintiff. The appeal was accordingly dismissed.
In our view, the case of Revill -vs- Newberry (supra) actually supports the
decision in the instant case that the maxim does not remove
the duty of
care.
The claims in the cases on which the appellant's learned Counsel in the
instant case has relied were cases in which the causes of
action were
inseparable from illegal contracts. The claimants had to rely on illegality to
prove their cases. The instant case, in
our view, is distinguishable. The
1st respondent did not have to rely, on the fact that his car had the
dealer's number plate, in order to successfully prove that the
appellant's
driver owned him a duty of care. His case was based on the fact that his car was
damaged by a breach of that duty of
care, not because he was on the road in a
car with a dealer's number place. His case was based on negligence by the
3rd respondent for which the appellant was vicariously liable. The
3rd respondent's negligent act was independent of the 1st
respondent's being on the road in his car bearing a garage number plate at
the material time.
In the circumstances, we found that there was no merit in the first eight
grounds of appeal. They failed.
Grounds 9 and 10 were abandoned by the appellants' learned Counsel.
Under ground 11, the appellant's learned Counsel said that the complaint
related to the evidence of the 1st respondent that the name of the
owner of the Benz Car which was damaged in the accident was Simon Kibule. These
were what No. 23095
Ouma Joseph, Cpl. had extracted from the third party
insurance. The learned Counsel contented that it is the registered owner of
the
Benz Car who should have sued for damages. In reply, Mr. Njuba submitted that
whereas the registered owner of a motor vehicle
is entitled to sue, any person
in possession or control of the vehicle or property can also sue for recovery of
damages caused to
it in an accident. In any case, the lst respondent
testified that he was driving his Mercedes Benz bearing a garage No. UI
703D/UPF922. He was using a garage number, because
he had already removed the
Registration number in order to get a personalised number.
We wish to observe that the ownership of the Benz car by the 1st
respondent was neither challenged in the pleadings nor at the trial. The
evidence of the 1st respondent, to which we have just referred in
this judgment, was not challenged. The appellant is therefore taken to have
accepted
that evidence. The issue was raised for the first time in the Court of
Appeal
This is what the Court of Appeal, in the lead judgment of Berko, J.A., said:
"The arguments in support of ground 5 can be grouped into three segments. The first segment was that it was not proved that the plaintiff was the owner of the Mercedes Benz car that was involved in the accident.
My short answer is that in a claim of negligence ownership of the
subject matter is irrelevant. It is possession that matters. At the time
of the accident it was the plaintiff who was in charge of the vehicle. He could
therefore maintain
the action against the one who caused the
damage."
As we have already pointed out unchallenged evidence showed that the
1st respondent was the owner of the Mercedes Benz car. However, even
if he was not the owner of the car, we agree with the Court of Appeal
that
possession thereof conferred on the 1st respondent the right to claim
the damages in question. In the circumstances, we saw no merit in ground 11 of
the appeal. It also
failed.
In the result we were satisfied that the appeal had no merit and that the
Court of Appeal rightly dismissed it and upheld the decision
of the trial court.
It was for these reasons that we upheld the Court of Appeal's decision and
dismissed this appeal with costs.
The appellant shall pay the costs of the
first, second and fourth respondents.
Dated at Mengo this 23rd day of April
2002.
A. H. O. ODER
JUSTICE OF THE SPREME
COURT
J. W. N. TSEKOOKO
JUSTICE OF THE SUPREME
COURT
A. N. KAROKORA
JUSTICE OF THE SUPREME
COURT
J. N. MULENGA
JUSTICE OF THE SUPREME
COURT
G. W. KANYEIHAMBA
JUSTICE OF THE SUPREME
COURT
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