Senyonga v Taliyana (Civil Appeal 2 of 1995) [1995] UGSC 28 (28 November 1995)

IN THE SUPREME COURT OF UGANDA

Supremig

(CORAM: MANYINDO, D. C. J., ODER, J. S. C. & TSEKOOKO. J. S. C.)

CIVIL APPEAL NO. $2/95$

AT MENGO

BETWEEN

BENEDICTA SENYONGA \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\* APPELLANT VZRSUS SLINEO TALIYANA ::::::::::::::::::::::::::: RESPONDENT

> (Appeal from the Judgment of the<br>High Court at Kampala (Justice R.<br>Bajasinghan) dated 30/11/94 in H/C $Ro = 563/1988$

JUDGMENT OF THE COURT.

Thee respondent, Erineo Taliyana, sued the appellant Benadicta Senyonga in the High Court for special and general damages for personal injuries he had sustained in a road motor sectident on 22.8.1995.

It was alleged in the plaint that the accident was caused by the respondent's negligence.

Briefly the facts of the case is that on the material date the respondent was walking home past the Uganda container terminal in Nakawa when he was knocked down by the appellant's car No. UUR 286 being driven by the appellant herself. The respondent sustained injuries in the accident. He was admitted to Mulago Hospital where he received medical treatment. He subsequently sued the appellant for special and general damages. The suit was based on negligence.

The appellant defended the Suit on a number of grounds. including denial of negligence or alternatively contributory negligence.

At the trial of the Suit the respondent and two other witnesses gave evidence in support of his case. The respondent's case was then closed.

On 25.11.1995, when the suit came for further hearing, the respondent was present in person. The appellant was absent, but her counsel was present. The appellant's counsel applied for an adjournment on the ground that the appellant was apparently sick. A medical chit to that effect had been sent to the chambers of the appellant's counsel. me application

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for adjournment was refused by the learned trial judge in the following terms:

> "I had repeatedly warned the parties that I will not ajourn this matter. The so called medical report does not state what reasons there was for granting two days<br>rest yesterday. Further more Iam not even certain it relates to this defendant "Benedicta Senyonga". This defendant has repeatedly absented herself in what I must assume is in effect to avoid Central R judgment.

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THE REAL PROPERTY

$\mathscr{U}_{\mathscr{O}_\ell}$

TROL

I therefore, for the reasons stated reject the so-called medical report and give judgment in favour of the<br>plaintiff reasons on the 30th of November, 1994 as the general damages need to be circulated."

On 30.11.1994 the learned trial judge passed judgment. allowing the suit. The respondent was awarded special and general damages.

The appellant appealled against the judgment. Two of the grounds of appeal are that: the learned trial judge did not excercise his discretion judicially when he refused to grant adjournment on 25.11.94 to enable the defendant to attend the hearing as a result of which the defendant mas deprived of the oppotunity to be heard before judgmont thereby occassioning a mincarriage of justice. The other is that the learned trial judge adapted irregular procedure when he gave judgment after the plaintiff had closed his case, without allowing counsels to address Court on the case.

When the appeal came before us to day for hearing Mr. Ayigimugu, learned counsel for the respondent conceded that there had been serious irregularities in the trial of the case. In the circumstances, he could not support the judgment in favour of the respondent.

We agree with the learned counsel for the respondent, with respondent we think that the trial of the suit was irregular and defective. The learned trial judge refused the appellants' application for adjournment on grounds not justified. Secondly, the counsel for both the parties were not given time to make their respective submissions: $\quad \text{and} \quad$ thirdly the learned trial judge similarlly gave judgment for the respondent reserving his reasons later.

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In the result, this appeal is allowed and the judgment set aside and a trial judge ordered that there should be a retrial of the suit by another High Court judge.

We make no order for costs.

Dated at Mongo this ....................... day of November 1995.

S. T. MANZINDO,<br>DEFITY CHIEF JUSTICE.

A. N. O. ODIN, JUSTICE OF THE SUPABLE COURT.

J. W. TSEKOORO, of the supply