IN THE SUPREME COURT OF UGANDA
CORAM: MANYINDO, D.C.J., ODER, J.S.C., & PLATT, J.S.C.
CIVIL APPEAL NO. 19/91
UGANDA MOTORS LIMITED::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
WAVAH HOLDINGS LIMITED::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
(Appeal from a judgment/decree of the High Court of Uganda at Kampala (Mr. Justice A.R. Soluade) dated 5th June 1991 in High Court Civil Suit No. 85 of 1989.)
(The following Judgments were delivered on the 1st July 1992)
The counsel representing the Appellant, Uganda Motors Ltd, and the Respondent, Wavah Holdings Ltd, put before the court an interesting series of arguments and counter arguments with a wealth of authority; and while one must congratulate them, it is a pity that the full range of desirable evidence was not, or perhaps could not be put before the High Court at the trial. The leaned Judge explained the central predicament in this case in these words:-
Mr. John Ntanzi (P.W.2), having received the news of the fire tried to alert the Managing Director and Chairman of Wavah Holdings Ltd; but having failed got the keys [and]went to the garage store. The police, a fire tender, and the Fire Brigade were there. The witness and no doubt others were able to break into the garage and push the vehicles therein outside. Another Fire Brigade from Entebbe arrived and reduced the heat and burning. The workshop was not in immediate danger; the spares were saved; a large crack developed in the adjoining wall. While removing the vehicles, the wall of Uganda Motors Ltd broke. The purlins and rafters were partly burnt. The fire in the Wavah Holdings Ltd premises was finally put out at about 12.00 midnight; but he thought that Uganda Motors premises were still on fire.
Two police officers gave evidence for the defence. The result of their observations is that they did not go to find out from where the smoke came, and they could not tell the cause of the fire.
The learned Judge came to the conclusion that the fire originated from the buildings of the Uganda Motors Ltd. But he could not tell what caused the fire. However, the fire was under the management of the Uganda Motors Ltd. It could not have occurred without the negligence of the Uganda Motors Ltd. Consequently he held that Company liable. He assessed special damages at shs. 6,774,179/-, and general damages at shs. 200,000/-.
Uganda Motors Ltd, appealed on issues of fact and law. The Appellant contended that the learned Judge was wrong to hold that the fire originated on the Appellant’s premises and was under its management. Having found no evidence as to the cause of the fire, the Judge ought to have found it to be accidental. In these circumstances the learned Judge should not have applied the doctrine of Res Ipsa Loquitur, thus finding the Appellant guilty of negligence. It was wrong to shift the burden of proof on to the Appellant by finding that the Appellant gave no evidence as to steps taken to prevent the fire or why it occurred. These objections were set out in the first five grounds of appeal, and the last ground concerned the quantum of damages.
Having heard counsel for both parties, it would seem that a central issue related to the application of the doctrine of res ipsa loquitur. As I have pointed out in the introductory paragraph of this judgment, the learned judge was faced with little or no evidence as to the cause of this fire. The argument concerned the application of either the doctrine of Res Ipsa Loquitur or the Fires Prevention (Metropolis) Act 1774. For the appellant, it was contended that the doctrine did not apply while the Act of 1774 did apply as an Act of general application. For the Respondent it was of course asserted that the Act of 1774 did not apply. The common law was relied upon which therefore brought the doctrine into play. The effect of the argument is this. At common law, if a fire began on a man’s own premises, by which those of his neighbor were injured, the latter in an action brought for such injury, would not be bound in the first instance to show how the fire began, but the presumption would be (unless it were shown to have originated from some external cause) that it arose from the neglect of some person in the house. (See Lord Tenterden C.J. in BECQUET vs. McCARTHY set out in MASON vs. LEVY AUTO PARTS (1967) 2ALL ER p. 62 & 67, see also Lord Wright’s speech in COLLINGWOOD vs. HOME AND COLONIAL STORES (1936) 3 ALL E.R. 200,203). The common law, therefore, held the person upon those premises the fire originated liable if he was negligent, and presumed him negligent if the cause was not known, unless that person could show that the fire was caused by a stranger or act of God. On the other hand the Act of 1774 relieved him of liability if the fire started accidentally. There is no burden on the Defendant of disproving negligence, that the proof of negligence would be on the Plaintiff. If the Act of 1774 did not apply there would be a burden of disproving negligence on the part of the Defendant, the Plaintiff being able to rely on the doctrine. It can be seen then that grounds 2, 4 and 5 can be answered by deciding whether the doctrine of Res Ipsa Loquitur applied or the Act of 1774.
There seems no doubt that the Act of 1774 did not apply. Its application stems from the fact that although it was originally an Act to control actions due to fire damage in London, it was applied throughout England. It therefore had some claim to be an act of general application. In the Judicature Act (Cap 34) of 1962, section 2 declared that the jurisdiction of the High Court was to be exercised subject to the constitution:-
But these arguments are with respect beside the point. The reference to Acts of general applicability was deleted from the 1967 Judicature Act. Such acts consequently no longer apply to Uganda. Section 3(2) of Act 11 of 1967 provides for the supremacy of the Constitution and continues that the jurisdiction of the High Court shall be exercised:-
On that basis then, the appellant’s arguments fell to the ground as based on the Act of 1774, and the learned Judge turns out to have been right for not applying it, though he gave no particular reasons for not doing so. The Judge was right to rely on the doctrine of Res Ipsa Loquitur, and there is no place for the concept of the Appellant’s liability being excluded if the fire arose accidentally. Presuming that the appellant was guilty of negligence, the burden would fall on it to show that it was not negligent, which would involve such notions as to whether any steps had been taken to prevent fire. It would in all probability necessitate the disclosure why the fire had occurred, or at least to show that it must have been accidental. It would also be a good defence if the fire had been caused by an external cause.
If follows that while the defences under the Act of 1774 are not available to the Appellant, the latter can defend itself by showing that the fire did not originate on its premises or under its management. (Grounds 1 & 3).
Mr. Mugisha relied on a statement of principle according to Charlesworth on Negligence (see Ed p. 42), that the doctrine comes into play as summarized when:-
The learned Judge weighed up the evidence, and concluded that the fire originated on the Appellant’s side of the dividing wall and spread to the Respondent’s side. He is criticized for that finding because of the contradictions in the evidence. There were some contradictory statements. It did appear that there might be two walls at one stage of the argument. But when one considers all the evidence and especially that of the independent witness Mr. David Bukenya (PW4) there was only one wall. The learned Judge was within his rights to hold that the fire originated on the Appellant’s side, and was in that sense under its general management.
As far as damages are concerned I would not differ from the calculations of the learned Judge. As far as general damages are concerned I would have thought that great inconvenience had been proved. The sum awarded was modest. The special damage was particularized in the documentary evidence produced. Consequently I would dismiss the appeal with costs to the successful party.
I have had the benefit of reading the judgment of my brother Platt, J.S.C. in draft. I agree with him that the appeal should fail for the reasons he has given. I have nothing useful to add.
JUDGMENT OF MANYINDO, D.C.J.
I read the judgment of Platt, J.S.C. in draft. I agree with it and as Oder J.S.C. also agrees, the appeal is dismissed with costs to the Respondent.
1st July 1992