Mwakagata v. Verji Civ. App. 23-D-70; 18/3/72; Biron J.

 

Mwakagata v. Verji Civ. App. 23-D-70; 18/3/72; Biron J.

The appellant filed a claim for Shs. 5,000/- for damage to his vehicle and Shs. 7,000/- for the loss of use of the vehicle. He alleged that the damage was due to the negligent driving of the respondent which resulted in a head-on-collision between his and respondent’s vehicle. The defence of the respondent was that the collision was caused by the negligence of the appellant who was driving on the wrong side of the road (his right side) and he (respondent) swerved from his left to his right side in order to avoid an accident. When the appellant was swerving back to his left side the two cars met in a collision. At the trial the respondent called a witness, the police inspector who visited the scene of the accident and who testified that according to what he saw, the accident took place when the respondent’s car was on its correct side of the road. Relying on this, the Magistrate found for respondent and dismissed appellant’s claim. On appeal it was argued that the inspector was not a witness of truth and his evidence should not have been accepted.

            Held: (1) That on the first appeal, the appellant was entitled to have the appellant court’s own consideration and views of the evidence as a whole and its decision thereon. (Citing DINKERRRAI RAMKISHAN PANDYA v. R. [1957] EA 336, 337]. (2) Whilst as appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so decide. (Citing PETERS V. SUNDARY POST LTD. [1958] EA 424 and SELLE AND ANOTHER V. ASSOCIATED MOTOR BOAT COMPANY LTD. AND OTHERS [1968] EA 123). (3) According to the inspector, “the collision took place on the respondent’s correct side of the road. This ……….. evidence (sic) is in direct contradiction to not only the evidence of the appellant but that of the respondent himself, as from the original averment in his written statement of defence”. “As

Remarked, the respondent’s evidence is equivocal, but at very lowest he categorically stated that he had left his own proper side of the road before the collision occurred, therefore the inspector’s evidence – which, as noted, is opinion evidence – that the collision occurred on the respondent’s side of the road is contradicted by both parties, that is, by the drivers of both vehicles.” In all the circumstances, the evidence of the inspector cannot be accepted.” (4) It is clear that the respondent left his proper side of the road and has failed to discharge the onus of justifying such a course. (5) Appeal allowed, case remitted to District Court to take evidence on the quantum of damages.