THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO. 139 OF 2006
1. BETTY AWINO
2. JULIET NAKATE
3. ANDREW KIGGUNDU
4. LULE ROBERT ::::::::::::::::::::::::::::::::::::::::::
PLAINTIFFS
5. AINCA OKELLO
VERSUS
1. PASTOR GODFREY LUWAGA
t/a CITY OF THE LORD
CHURCH ::::::::::::::DEFENDANTS
2. GODFREY KAWALYA

BEFORE: THE HON JUSTICE V.F. MUSOKE-KIBUUKA

JUDGMENT:-
IntroductionPleadings
The 8th day of March, 2006, was a day of aweful tragedy. It
was a catastrophe of significant magnitude to the residents
of Kyenando, Nsooba Zone, Kaleerwe, in Kawempe Division,
within the city of Kampala.

On that day, the “City Of The Lord Church,” a large

structure, which had just opened it’s doors to believers for
worshiping, collapsed killing some 29 persons and injuring
scores of others. Among those killed was the late Margaret
Mary Syuda, who was mother to the first to the fourth
plaintiffs and daughter to the fifth plaintiff. The plaintiffs
sued the defendants for special and general damaged
arising out of alleged negligence on the part of the
defendants. They all claimed to have lost support and
dependency. Their suit is grounded into the provisions of
the Law Reform (Miscellaneous Provisions) Act, Cap. 79.

The second to the fourth plaintiffs sued through the first

plaintiff as next friend because they were not yet of the age
of majority by the time.

The suit was filed against both defendants on 12 th March,

2007. the second defendant did not file a defence. The
case against him was subsequently withdrawn by the
plaintiffs, in court, on 10th October, 2008.

In his defence, the first defendant, admitted that on the date

and the place mentioned in the plaint, an accident occurred
leading to loss of lives. He denies that the accident was
caused by his negligence. He pleads that the accident was
caused by an act of God.

Agreed Facts:
The following facts were agreed upon by both parties;
1. the fact that the City Of The Lord Church collapsed on
8th March, 2006;

2
 2. the fact that when the city of the Lord Church collapsed
several persons who were worshiping were injured and
some died
3. the fact that Margaret Mary Syeunda was among the
people who died when the City of the Lord Church
collapsed.

ISSUES:-
Similarly, the following issues were agreed upon for
determination by court:-
1. whether the suit was time-barred
2. whether the defendant was, at the material time, the
owner of the City of the Lord Church;
3. whether the late Margaret Mary Syeunda was an invitee
in the City of the lord church when it collapsed’
4. whether the city of the lord church collapsed owing to
the negligence of the defendant or his agents or due to
an act of God, and
5. what remedies are available to the parties, if any?

Whether The Suit Is Time Barred.

Under paragraph 8, of the plaint, the plaintiff gave notice of
his intention to raise a point of law at the beginning of the
hearing of the suit. The issue of limitation was raised by
learned Counsel for the plaintiff, Mr. Omwony John Paul.
However, court ordered that the preliminary objection be
turned into the first issue.

3
Mr. Bamwite submitted that under section 6 of the law
Reform (miscellaneous provisions) Act, Cap 79, the time
within which a suit of the kind ought to be filed in court was
a period of twelve calendar months. Since the cause of
action arose on 8th March, 2006 and the plaint was filed in
court on 12th March, 2007, the suit was time-barred because
the twelve calendar months expired on 9 th March, 2007. So
submitted learned counsel.

Learned counsel for the plaintiff, Mr. Omwony, gave two

reasons why he submitted that the suit was not time-barred.
1. that the period of limitation under section 6 (3) of the
Law Reform (Miscellaneous Provisions) Act was not a
period of twelve calendar months but a period of three
years; and
2. that the plaintiffs’ plaint was ready for filing in court by
3rd March, 2007, however they were prevented from
filing in time by the industrial action taken by court
from 2nd to 9th March, 2007, whereby court protested
it’s invasion by the security agents.
Subsection (3), of section 6, of the Law Reform
(Miscellaneous Provisions) Act provides as follows:-
“ (3). Not more than one action shall lie for
and in respect of the same subject matter of
complaint and every such action shall be
commenced within twelve calendar months
after the death of such deceased person.”

4
Court agrees with learned counsel Mr. Omwony that the
actual position of the law regarding the period of limitation is
not 12 calendar months but a period of three years. What
appears at page 1486 of Volume IV of the Principal
legislation, revised edition of the year 2000, is not the
correct position. The mistake originated from Cap. 74, in
the 1964 revised edition, whereby the amendment vide
ordinance 46 of 1958 (section 36) was omitted during that
revision. The error however, was corrected in a noter-up
to that edition at P. 29. The same original mistake appears
in the 2000 revised edition which has also been high lighted
in the related noter-up. Upon that fact the first preliminary
objection fails.

Secondly, court would also state that the objection would

equally fail if the position had been actually the twelve
calendar months erroneously mentioned in the revised
edition under subsection (3) of section 6. The reason is
because the tern “month” is defined under section 2, of the
Interpretation Act to mean “ a month reckoned according
to the Gregonian calendar.” This, to court, would mean
that a period of 12 calendar months would mean 12 full
calendar months. Under that contex one can only reckon full
calendar months. They are that only ones the can be
reckoned according to the Gregorian Calendar. If the
deceased died on 8th March, 2006, the first calendar month
would not be March but April, 2006. The period of twelve
calendar months would therefore, have expired not on 9 th

5
March, 2007, as learned counsel, Mr. Bamwite argued, but
on 30th March, 2007. in that case, the plaint would have
been filed in court well in time having been filed on 12 th
March, 2007.
The preliminary objection can, therefore, not be sustained.
It is rejected.

Whether The Defendant Was At The Material

Time The Owner Of The Church That Collapsed?
The plaintiffs adduced evidence to the effect that the
defendant was the owner of the City of the Lord Church
that collapsed. PW1, Mr. Edward Mugabi, a building
inspector with Kampala City Council, the controlling
authority in the area where the structure was built,
testified that, he knew Pastor Luwaga as the developer
of the City of the Lord Church, which collapsed. Prior
to the collapse of the building, he had visited the site
and inquired in to the person in charge of its
development. The builder told him that the developer
was Pastor Luwaga; he was given his phone number he
tried to contract him but Pastor Luwaga did not pick the
call. The phone number is written on top of Ex. PE 2.
the phone number was confirmed by DW1 to be for
Godfrey Luwaga.

In his defence, the defendant denied liability stating

that he was working for the City of the Lord Outreach
Ministries which was registered as an NGO. He

6
produced Ex. 2, his appointment letter as a pastor of
the church. He went on to produce certificates of
registration of the NGO to prove that it was a
community based organization of preaching the gospel
of Jesus Christ and to establish projects of the local
community. He asserted that, the church property did
not belong to the pastor but to the community.

No documentary evidence was adduced as to the

ownership of the land on which the building was
constructed by either party. The plaintiffs, however
endeavoured to prove that Pastor Luwaga was not only
in charge of supervising the construction of the church
with the help of Geofrey Kawalya, but was also referred
to as the developer, and therefore, the owner of the
church. He was also the pastor in charge of the church
or the occupier at the time the building fell killing the
deceased.

As to whether the NGO or the pastor owned the church

in question, the defendant admitted being the promoter
and director of the city the lord Outreach ministries, the
NGO. He was the founder and director. The only
other director was his wife. He cannot divorce himself
from the responsibilities arising there from. It is not in
dispute that the defendant was the occupier of the said
premises using it as a place of worship. He was the
only known owner of the place of worship to the entire

7
community. As such he cannot hide behind the veil of
the City of the Lord Outreach ministries, which was not
a sueable entity at the time the Misfortune occurred.

Court accepts the evidence of both PW1 and PW3 both

of whom were KCC supervisors of structures in the city
that the defendant was the developer and occupier of
the structure that collapsed. It is notable that as at 8 th
March, 2006, the company limited by guarantee and
known as City of the Lord Outreach Ministries Ltd had
not yet been registered. It was registered on 1 st April,
2008. Before then, the owner and occupier and
promoter, was the defendant. Accordingly, the first
issue is answered in the affirmative.

Whether Margaret Mary Syenda Was An Invitee

In The Said Church At The Material Time.
In court’s opinion, it is immaterial whether the decease
was invitee or licensee. The deceased did come to a
place of worship, which is a public place. She was not
a trespasser. The church owners/occupiers owed a
duty of care to the church users. They were universal
invitees. Any member of the church or believer, is an
invitee to the church at any time it is open. In
addition, the evidence on record is that the deceased
was a member of that church. The evidence of PW2
was that on the fateful occasion the deceased told him

8
that the defendant had invited her to the church. She
was an invitee.

Whether The City Of The Lord Church Collapsed

Owing To The Negligence Of The Defendant Of
His Agents Or Due To An Act Of God.
PW1 testified that he visited the scene on the 9 th March,
2006 a day after the church had collapsed and made a
report exhbit P1. He said that he found the work to
have been substandard. The materials used were also
sub-standard. The church was built in a wetland. The
construction was not preceded with an approved
building plan. There was no approved structural plan
either. PW3 further confirmed that there was no
occupation permit issued yet the defendant’s church
was already being occupied by worshippers while it
was still under construction. That evidence was never
controverted. It stands unchallenged. In total that
church was an illegal structure put up by the defendant
and in a wet land.

In his defence the defendant testified that there was a

storm due to heavy rains which caused the City of the
Lord Church, together with some few other buildings in
the area to collapse. He argued that it was an extra
ordinary act of God which could not have been
anticipated by anybody. That argument cannot stand
in light if the evidence regarding the construction

9
defects and the structure having been illegal and
constructed in a wetland without any approved plans.

To establish occupier’s liability, a plaintiff must prove

that:-
a) the defendant has occupation or control of the land
or structure; and
b) the defendant was negligent i.e duty, breach and
damage.
Occupiers must take reasonable care and owe a
common law duty of care to ensure that anyone (even
trespassers) who comes onto those premises is not
injured.

In the instant case, the plaintiff have, in court’s view,

proved upon the balance of probabilities, that the
defendant was the occupier and developer of the
church. He built the church in a wetland and without
any building or structural plans. None were approved.
The mixture of the materials was based upon wrong
and unprofessional formulae. The Church was
occupied without any occupation pemit. All those
factors rendered the church building potentially liable
to sudden collapse. The building was a time bomb.
The defendant had shunned the notes served upon him
by KCC. If he had co-operated with the authorities, the
defects would have been detected and preventive
measures taken in time before the building collapsed.

10
Buildings & Sons Ltd. Vs. Riden [1958] All E. R.
522.

The defendants defence of an act of God appears even

at the face of it, to be untenable. Although it is true
that there was some rain storm in the evening of 8 th
March, 2007, at about 5.30 -6.00 pm, when the church
building collapsed and although some few other
structures, in Kawempe Division, were also effected,
that, per se, does not render the event an act of God.
The defence of an act of God is of very limited
application it imposes a heavy onus of proof upon the
defendant the test is, could the harm have been
prevented by any degree of human care? In the
instant case, the answer would be a resounding yes!
Hence, the in acceptability of that defence. It is
rejected.

What Reliefs Are Available To The Plaintiffs If

Any?
The plaintiffs brought this suit under sections 5 and 6 of
the Law Reform (Miscellaneous Provisions) Act for
special and general damages for loss of financial
support dependency.

Learned counsel for the defendant has submitted that

the plaintiffs have not proved their dependency upon
the deceased. Court does not agree totally with that

11
 submission. The evidence of PW2, Kiggundu Andrew
and to some extent, that of PW4, Mageni Ronald, prove
the element of dependency in this case. There is no
dispute regarding the fact that the first four plaintiff’s
were biological children of the deceased, and the fifth
was her aged father. The plaintiffs’ court agrees
constitute nuclear African family. The deceased had
no husband and she was the sole bread earner. By
12th March, 2007, when the case was filed in court both
the third and fourth plaintiffs were still minors. They
sued through a next friend, the first plaintiff. The third
plaintiff was still in school by the time he gave
evidence in court. According to him, the fourth plaintiff
was also in school out owing to lack of tuition fees
following the death of her mother. The evidence on
record is that the fifth plaintiff was the father of the
deceased who was suffering from an enlarged prostate
and was over eighty years old and was lying disparate
at the deceased’s home at Ntinda.

In court’s view, there is no legal requirement that in order to

prove dependency the evidence must be personal. Any
credible evidence would be sufficient. Court finds the
evidence of PW2 both credible and sufficient in that regard.

Court duly agrees with the submission by learned counsel,

Mr. Omwany, that the principles upon which court must
assess general damages for loss of dependency were well

12
laid down by the privy Council in Gulbanu Rajabali
Kampala Aerated Water Co. Ltd [1965] E.A. 587.
Similarly, the decision by Odoki J, as he the decision as he
then was in Jane Gaffa Vs. Francis X.S. Natega, HC Civil
Suit No. 1150 of 1975, offers an extensive guide once in
that important area.

These principles general require that:-

- the court takes the last earnings of the
deceased person as the starting point. Out of
those earnings is assessed the pecuniary
benefit regularly accruing to the defendants;
- court then determines the appropriate
multiplier. This is the number of years during
which the benefit of the dependency would
have continued to be available to the
dependants if the deceased had lived beyond
the date of death and continued making
earnings;
- the determination of the multiplier is guided by
the age at which the deceased died and what
his or her working life expectancy would have
been had he or she not met his or her demise in
the fatal accident;
- the total lost dependency or benefit is obtained
by multiplying the annual lost benefit by the
multiplier;

13
 - the total lost dependency benefit is then
apportioned among the dependants. If the
deceased was the husband, the widow is
entitled to a more substantial share of the
damages in recognition of the fact that her
dependency upon her husband’s support would
ordinarily continue longer than that of the
children. If the wife was the bread winner in
the family and she is the one who met her
death, the surviving dependant husband would
be treated in a similar manner.
- in apportioning the damages court would award
the younger children relatively larger portions in
recognition of the fact that their dependency,
upon the deceased, would have lasted longer
than that of older children.

It is not in dispute that the deceased died at 45 years of age.

PW2 evidence to that effect was not challenged in cross-
examination. Court assures it was accepted.
The evidence of PW4 and PW2 shows that the deceased was
not self- employed, owing site in Mpigi District. The boats
were managed by one Kanini with PW4 as the deceased’s
overseer. The evidence is that by the time of the death of
the deceased. She was earning Shs. 3,000,000/= a month
from the three boats. PW4 used to deliever the money to
her. However, considering probable imponderables and
especially the now well known phenomenon of fish reduction

14
in lake Victoria, court would reduce the monthly income to
Shs. 1,500,000/= per month.

The deceased was selfemployed. The 60 years compulsory

retirement age would not be applicable to her. However, it
is generally accepted that a person in Uganda would work up
to 60 years. In that case the deceased who died at 45
would still have some 15 years of working. But since her
serve of income were the three boats which PW4 testified
had already been operational for 12 years. It would not be
realistic to expect those boats to generate income for
another 15 years. Court would reduce their income earning
ability to 5 mote years. Thus the lost expected income of
the deceased would be Shs. 1,500,000/= x 12 x5 =
90,000,000/=.

Court agrees that with a family of 5 dependents, the

deceased would probably spend 2/3 of that income upon her
dependants. The amount would be Shs. 90,000,000x2/3 =
60,000,000/=. Court would award Shs. 60,000,000/= to
the plaintiffs as lost dependency.

Bearing in mind the principles set out earlier, court would

apportion the Shs. 60,000,000/= to the plaintiffs as follows:-

Plaintiff No. 1. Betty Awino:

She was 24 years old. She was not residing with the
deceaed but at Katebo. She had a child. She was not

15
married and was unemployed and still depended to some
extent upon support from her mother. Court would award
Shs. 6,000,000/= to her for loss of dependency and finantial
support.

Plaintiff No. 2, Juliet Nakate

She had completed S.4 and wanted to undertake a
vocational course. She could not for lack of financial support
owing to the death of her mother. She depended entirely
upon the deceased. Court would award Shs. 10,000,000/=
to her.

Plaintiff No. 3, Andrew Kiggundu

He was still in secondary school in S.2 when the deceased
died. He was still in school with plenty of difficulties with
school fees when he testified in court. Court would
apportion Shs. 14,000,000/= to him.

Plaintiff No. 4, Lule Robert.

He was the youngest of the deceased’s dependants at 15
years of age and still in school depending entirely upon the
deceased. Court would apportion Shs. 20,000,000/= to him.

Plaintiff No. 5
He was the father of the deceased. At 80 years of age and
afflicted with prostate enlargement, he was residing at the
deceased’s home at Ntinda and entirely dependent upon
her. Court could apportion Shs. 10,000,000/= to him.

16
Regarding the claim for special damages, court agrees that
the plaintiffs did not strictly prove the claim of Shs.
1,500,000/= claimed in the plaint as funeral expenses.
Secondly, during the final submissions they put up an
inconsistent claim of Shs. 3,000,0000/= as special damages.
That was an unacceptable departure from the pleadings.
Interfreight Forwarders Uganda Ltd. Vs. East African
Development Bank, SC Civil Appeal No. 13 of 1993.
Court awards no special damages upon that account for
none was strictly proved.

The award of Shs. 60,000,000/= shall carry interest at 8%

per annum from the date of judgment to the date of
payment in full.

The costs of the suit are awarded to the plaintiffs.

V.F. Musoke-Kibuuka
(Judge)
30.04.12

17