Court name
High Court of Uganda
Case number
Civil Suit-1990/15
Judgment date
9 April 1992

Jack Busingye & 2 Ors v TMK (Civil Suit-1990/15) [1992] UGHC 15 (09 April 1992);

Cite this case
[1992] UGHC 15
 
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
HOLDEN
AT FORT PORTAL
CIVIL SUIT NO.15 0F 1990

1. JACK BUSINGYE
2. JAMES BAHEMUKA::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFFS
3. FRED BUTAMANYA

VERSUS

T.M.K:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT
BEFORE: - THE HONOURABLE MR. JUSTICE I. MUKANZA

JUDGEMENT
The plaintiffs in this case jointly filed an action against the defendant company claiming for general and special damages plus costs and interest arising from damage caused to the plaintiffs forests when a vehicle carrying fuel driven by the defendant’s servant/employee overturned and caught fire spreading to the plaintiffs’ trees.
According to the plaint, on or about the 24th day of July 1990 the defendant’s motor vehicle registration NO. KVO 325B with semi trailer registration No, KVO 418B which was being driven by the defendants employee one Hamisi Bigirimana in ordinary course of employment had an accident whereby it overturned at Rutoto Bunyaruguru, Bushenyi District or Mbarara Kasese Road.
As a result of the said accident, the said motor vehicle which was loaded with petrol exploded into high flames and caught fire which caught the neighboring bush and spread far and wide on both sides of the road eventually destroying the first plaintiffs 5 hectares of trees, the second plaintiff’s 1 hectares of trees and the third plaintiff’s 11/2 hectares of trees that were in the neighborhood.
It was alleged in the plaint that the cause of the accident wasdue to the negligence of the defendant’s servant for which the defendant was vicariously liable in that he was driving at high speed on a dangerous piece of the road. He failed to control the Vehicle so as to avoid the accident and that he was driving a vehicle with highly inflammable substance without any gadgets to control the spread of fire in the case of accident.
The value of the plaintiffs’ trees that were destroyed by the said fire as assessed by the forest officer was as follows:-
(a) First plaintiff Shillings thirty nine million (shillings 39,000,000/=).
(b) Second plaintiff Shillings seven million eight hundred thousand (Shillings 7,800,000/=).
(c) Third plaintiff Shillings eleven million seven hundred thousand (Shillings 11,700,000/=).
Total claim is Shillings 58,560,000/=
In its written Statement of Defence the defendant company denied each and every allegation contained in the plaint and made against it. They contended that although its truck registration No. KVO 325B/KVO 418B fell and caught fire at Rutoto Bunyaruguru it was not because of the negligence of its driver but an act of God. The fire which broke out only burnt their truck and nothing else. The fire from the said truck did not occasion any loss or damage to the plaintiffs’ trees or any person’s tree or property at all. The defendants shall produce photographs to prove this.
If the plaintiff trees were destroyed by fire which was not admitted the fire had no connection whatsoever with the fire that burnt the defendants truck. The defendant would produce evidence to show that the fire which burnt the truck was not the fire that burnt the plaintiffs’ trees that was if the plaintiffs owed any such trees at all.
In the alternative but without prejudice to the foregoing the defendant averred that the plaintiffs do not have any trees or at all. But that such trees belong to the Government and as such even If there was any damage done to the said trees which damage was denied to, the plaintiffs had no locus standi to bring the present suit against the defendant.
The facts of this case were simply as follows:—
The defendant is a Zairean registered Company carrying on business of transport through the Republic of Uganda and with a branch office in Kampala. On 24th July 1990, the defendants motor vehicle registration No. KVO 325B with semi trailer registration No. KVO 418B which was carrying petrol was being driven by defendants servant one Hamisi Bigirimana. The motor vehicle overturned at a place called Rutoto in Bunyaruguru Bushenyi District on Mbarara Kasese Road. As a result of the accident the petrol exploded into flames and caught fire catching the neighboring bush and spread on both sides of the road. It is alleged that the said fire destroyed the plaintiffs forest/trees and hence the filing of this action.
At the commencement of the trial of this case the following issues were flamed namely:—
(i)     
Whether the plaintiffs forests were burnt.
(ii)     If yes did the fire originate from the defendants vehicle which overturned.
(iii)    If yes was this overturn due to the negligence of the defendant’s driver/servant.
(iv)     If yes what is quantum of damages as a result of the loss by the accident.
As regarded the evidence as adduced in court;
There was evidence from PW1 to he effect that he owned a forest at Rutoto to the tune of 20 hectares. His forest comprised of Cyprus, pines and eucalyptus trees exhibit P.1. On the date when this forest got burnt he was away. He came to the site at around 4.00 PM and found flames originating from the burnt vehicle had spread into both sides. The fire passed through the nearest grown up forest and spread and destroyed his forest down the hill. He reported the matter to PW5 Mwesige a Police Officer in Rutoto Police Post.
Whereas PW5 and PW7 who were both Police Officers on information received proceeded to the site where a tanker had over turned and caught fire. They could not reach the place and no vehicle could pass. The fire was coming from the vehicle which had caught fire and was burning on both sides of the road. The fire spread to the forests PW5 witnessed this. The fire spread to the front which was a slope, petrol ignited spreading to all sides of the road. PW5 reiterated that it was a dry season and rough at the scene when the fire subsided he interviewed the driver. Meanwhile PW1, PW3 complained to him that the fire had destroyed their forests. Butamanya PW3 whose forest was about 200 meters away from the site showed them the burnt forest. PW7 as stated earlier was together with PW5. Him and PW5 were Police Officers. His testimony was almost similar to that of PW5. They stayed at the scene commanding vehicles for sometime. After three days he received a report from Bahemuka PW2 that his forest had been burnt. He entered the report in the Station diary after which he referred him to the forest officer.
Besides PW1, PW5 and PW7 there were still eye witnesses who saw the forests in question get burnt, Barnabas Mamwegisha Chairman RC1, PW6 of Ikombe 1 where the accident happened testified that he knew PW1, PW2 and PW3. While at his home he had an explosion of a vehicle having overturned. It fell at Ikombe 1 and his home was just half a mile from where the vehicle overturned. He went there. Fire spread over the whole hill and spread on both sides of the road. It destroyed forests PW1, PW2 and PW3. He saw the fire physically and went near vehicle which had been burnt beyond recognition. PW2 and PW3 went to him and he made a report to the RCII Chairman and also made a report to the Police. In his evidence Twinomujuni Edison a PW8 testified that PW2 was his father. On 24th July, 1990 at about 2.00 p.m. he was at his home when he heard an explosion. He went there and he saw some fire burning. The fire originated from the vehicle which got burnt. His home was half a mile from the scene. After the explosion and after a short time fire spread to their trees (PW8 and PW2 trees). The fire burn, their eucalyptus trees. At that time they could not stop the fire and his father PW2 was in Kampala. When the latter returned he reported the matter to him. That the size of the forest that was burnt was about an hectare the whole of their forest was burnt. Other forests burnt was that of Frederick Butamanya PW3 and that of the Government which was on the right hand side as one comes from Ishaka Bushenyi (