[2024] UGHC 276

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CS-0002-2018 EAST AFRICAN SAFARIS LIMITED :::::::::::::::::: PLAINTIFF VERSUS UGANDA WILDLIFE AUTHORITY :::::::::::::::::: DEFENDANT

BEFORE: THE HON. LADY JUSTICE JOYCE KAVUMA

#### JUDGMENT

#### Background

[1] On the 18th of January 2017, a fire with a gigantic flame blown by strong winds was seen originating from the center of the vast expanse of Queen Elizabeth National Park towards the plaintiff's Game lodge cottages burning eight out of the ten lodge cottages. That the staff manning the Game lodge cottages were unable to create a fire line to stop and control the fire without the express permission of the defendant. The defendant's firefighting officials arrived so late that the plaintiff's officials could only save two cottages.

[2] The Plaintiffs filed this suit for declaration that their loss of business and burning of Kyambura Game Lodge was as a result of the defendant's negligence and omissions. They claimed a sum of 2,228,124,532/=shillings as special damages for the lost business and property, general damages for negligence, interest and costs of the suit. The Defendant filed a defence challenging the Plaintiff's claim praying that the suit be dismissed with costs. The defendant's defence is that there were no burning activities initiated by the defendant's employees on the 18th day of January 2017 and that no fire started in the National Park as alleged by the plaintiff. Further, that the defendant never at any time refused and or stopped the plaintiff from maintaining the fire lines as alleged by the plaintiff.

#### Representation

[3] The Plaintiff was represented by Credo Advocates and the Defendant was represented by The Legal Unit of Uganda Wildlife Authority

#### Agreed Issues for Determination

- [4] Both parties agreed on the following issues for determination; - i. Whether the fire that burnt down the plaintiff's game lodge came from Queen Elizabeth National Park which is managed by the defendant. - ii. Whether the defendant is liable for the loss occasioned by the fire to the plaintiff. - iii. Whether the plaintiff is entitled to any remedies sought.

#### Burden and Standard of Proof

[5] In civil proceedings, the burden of proof lies upon he who alleges. Section 101 of the Evidence Act, Cap 6 provides that;

- i) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. - ii) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

#### Plaintiff's Evidence

[6] PW1 Besya Albert the manager of Kyambura Lodge stated that he received a call at around 13:00pm that a fire had started from the side of Queen Elizabeth National Park and had destroyed 8 cottages and other properties belonging to the plaintiff. He personally saw the extent of the damages caused by the fire.

PW2 Dickens Kaboroga stated that he saw the extent of the damage caused by the fire on the plaintiff's property and oversaw all the renovation works that took place. On cross examination he mentioned that he was not an employee of the plaintiff at the time the fire happened and never saw how the fire started.

PW4 Musa Ndyanabo the plaintiff's chief security officer for the lodge stated that he saw a gigantic bush fire come from Queen Elizabeth National Park towards the lodge and later burning down its properties. He warned the other plaintiff's employees to be alerted to stop the fire in case it attacked the lodge and informed the manager too. Villagers and the plaintiffs' employees helped to put the fire out and by the time the defendant's warden arrived, it was too late.

PW5 Katuramu Patrick stated that he saw the gigantic bush fire in the defendant's game lodge and he and his colleagues rushed to the lodge to help put the fire out.

#### Defendant's Evidence

[7] DW1 Owoyesiga Benard stated that he was at Kyambura Center when he saw huge smoke and quickly thought his camp was on fire, so he rushed to the camp. He then noticed that the smoke was coming from the Kyambura Game Lodge towards the Wildlife Reserve which is part of Queen Elizabeth National Park. He called the warden-in –charge informing him of the fire, and he called the monitoring and research unit to come extinguish the fire before it could spread to the reserve. He participated in back burning with the fig tree to try to stop the fire.

DW2 Tumuramye Charles stated that the fire started from the community land and burnt through Volcano Lodge whose workers called community members to fight it. The fire continued to Kyambura Lodge, but the community members refused to help due to bad relations between the lodge and the community. He also stated on cross examination that he never saw how the fire started but that it started from the community.

DW3 Odongo Sulaiman stated that he was at Pumba Safari Lodge Cottages when he heard people shouting for help. He ran to see what was happening and saw plumes of smoke emanating from Kyambura Lodge. When he reached the lodge, the fire had not yet fully engulfed the cottages. According to DW3 the fire came from the land owned by Volcano Lodge and not the Game reserve.

#### Analysis of Issues

# Issue 1: Whether the fire that burnt down the plaintiff's game lodge came from Queen Elizabeth National Park which is managed by the defendant.

[8] Counsel for the plaintiff submitted that it is an agreed fact that the plaintiff's lodge was gutted by wildfires on 18th January 2017 and that the director of the plaintiff reported the matter to Rubirizi Police Post as a criminal case of which a police report was made. He relied on the testimony of the Plaintiff's witnesses where they state that the fire came from the defendant's National Park, stating that their evidence was unshaken even on cross examination.

He stated that PW5 Muramuzi Moses, the then D/ASP of Rubirizi CID police station, was assigned the case and that he produced certified copies of the overall police report and sketch map PE3 and PE3A. That it was PW5's findings that the fire that gutted the plaintiff's lodge was seen originating from the center of the vast expanse of Queen Elizabeth National Park, being blown by a strong wind towards the cottages. He also stated that the back burning done by the Uganda Wildlife Authority worsened the situation as per PW5's findings. There was no evidence to show that the fire was ignited by the local communities.

Counsel for the defendant in response stated that in all the 6 plaintiff witness statements, they relied on hearsay, and none directly witnessed the fire coming from the park. He stated that the fire incident report relied upon by the plaintiff to prove that the fire came from Queen Elizabeth National Park is inconclusive in most of its findings. That the report signed by ASP Mfitundina, the Regional Fire Officer of Greater Bushenyi indicates that the cause of the fire was an uncontrolled fire outbreak from Queen Elizabeth National Park by an unknown person and it is not shown how he came to that conclusion.

Counsel for the defendant also submitted that the plaintiff's case had some inconsistencies. The first inconsistency being the time of the fire outbreak, Musa Ndyanabo the security manager of East African Safaris Ltd stated in his witness statement that the fire started around 14:00pm while the complainant Byakutaga Robert stated in his witness statement that he was informed by the security manager that the fire started at 13:00pm and the fire incident report shows 15:00pm. The second inconsistency he claims is that the police incident report shows that the fire was eventually put out by Kyambura Game Lodge staff and the neighbouring community using the installed fire protection systems within the premises while PW4 Musa Ndyanabo stated in his witness statement that the fire was put out by the fire brigade that arrived late.

Counsel for the plaintiff in rejoinder stated that a time difference of one hour is not a grave inconsistency but rather a minor one and is not central to the outcome of the case. Counsel for the defendant argued that these inconsistencies are grave in nature and should lead this court to believe the plaintiff is being untruthful.

[9] PW5 Muramuzi Moses D/ASP testified that he invited a fire expert to examine the scene and came up with the report. He stated that according to his investigations, the blame is on the Institution of Uganda Wildlife Authority. He stated that one of the game rangers Owesiga Benard confirmed that the fire was in the National Park but denied having burnt the fire and the Resident State attorney advised that the matter be a civil matter instead of criminal. He further stated that during his investigations he found the seat of the fire was in the National Park. He authored the police report titled 'FAILURE TO CONTROL FIRE VIDE RUBIRIZI CRB 055/2017' addressed to the defendant Uganda Wildlife Authority (UWA) dated 23rd January 2017 PExh3a in which one of the findings was that;

"The fire was seen originating from the center of the vast expanse of Queen Elizabeth National Park and blown extremely by a strong wind towards the cottages. The gigantic fire crossed the fire line and caused the cottages ablaze...fire preventive measures of back burning employed by the UWA worsened the situation. it was assumed to some extent that the fire was ignited by the local communities but without evidence to support that assumption..."

DW1 Oyesiga Benard testified that he saw the big fire clearly entering the National Park from another direction. He then stated that he saw the smoke in the National Park from where he was seated, and he thought his camp was on fire. That he also participated in the back burning to stop the fire. That the fire was coming from the national park from the community land entering the national park.

#### Resolution

[10] PW4 Musa Ndyanabo, the chief security officer of the East African Safaris Ltd stated in his witness statement and maintained on cross examination that he saw the gigantic bush fire being blown by a strong wind coming from the Queen ELizabeth National Park setting ablaze the Plaintiff's lodge. This was corroborated by PW5 Muramuzi Moses D/ASP whose findings in PExh3a and PExh4 state that the fire originated from Queen Elizabeth National Park. This was also corroborated by the testimony of Owoyesiga Bernard who in his witness statement said that he saw huge smoke and first thought his camp was on fire but on reaching the camp he:

## 'Noticed that the smoke was emanating from the premises of Kyambura Game Lodge'.

However, on cross examination he stated that he saw a big fire and smoke in the national park and participated in the back burning to stop the fire. He even further clarified that his memory has not lapsed.

### In Kirugi and another vs Kabiya and three others [1987] KLR 347, it was held that:

"The burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof."

The standard of proof is a probabilistic threshold. The plaintiff will satisfy this standard and succeed in his or her claim only if there is, on all the evidence adduced in the case, more than a probability of his or her claim is true.

In Kaggwa vs Ampire (Civil Appeal 126 of 2019), it was held that;

"The plaintiff has to succeed only on the strength of his case and not on the weakness of the case set up by the defendant in a suit for declaration of title and possession. That can only be done by adducing sufficient evidence to discharge the onus, irrespective of the question whether the defendants have proved their case or not." [Emphasis mine]

Therefore, after analyzing the evidence adduced by both the plaintiff and defendant, it is my considered opinion that the origin of the fire cannot be attributed to Queen Elizabeth National Park basing on insufficient and inconsistent evidence of the plaintiff as to where the fire started. There is no evidence linking the plaintiff to the wild fire that ended up destroying the property of East African Safaris Ltd.

It is trite law that courts of law ought to act on credible evidence adduced before them and should not indulge in conjecture, speculation, attractive reasoning or fanciful theories. (See Advocates Coalition for Development Environment and 4 Others vs Attorney General and another (Constitutional Petition No. 14 of 2011)).

With no credible plaintiff evidence to prove the origin of the fire I find that the fire that burnt down the plaintiff's game lodge did not come ## from Queen Elizabeth National Park which is managed by the defendant.

Issue 1 is resolved in the negative.

### Issue 2: Whether the defendant is liable for the loss occasioned by the fire to the plaintiff.

[11] Given that in issue 1 above I have found that the fire did not originate from Queen Elizabeth National Park, it is important to ascertain whether or not the Uganda Wildlife Authority is responsible for the fire outbreak and thus liable for the loss occasioned by the plaintiff.

It is the plaintiff's claim that the defendant is liable for negligently allowing the fire to burn up its property. The particulars of the alleged negligence being:

- a. Failure to implement a firefighting plan agreed with stakeholders in a meeting held around 11th July 2012. - b. Failure to provide authorization to owners of Game Lodgers and Hotels to clear and maintain fire lines as agreed in the above meeting. - c. Failure to respond to the plaintiff's distress call to stop the fire from burning the plaintiff's properties. - d. Failure to put measures to stop, prevent and control any park fires from spreading and causing damage to the neighboring businesses.

The plaintiff also averred in paragraph h-k of the Plaint that around 29th May 2012, the area conservation manager for Queen Elizabeth National Park called the plaintiff's officials via email, for meetings to discuss firefighting control measures. That it was agreed that each game lodge was to be allowed to maintain fire lines, but the defendant instead warned the plaintiff's security manager that he would be arrested if he continued maintaining fire lines. The plaintiff claims that the defendant's willful refusal or negligence to promptly authorise the plaintiff to maintain the fire lines, they were at greater risk of experiencing a fire.

#### (Emails not tendered as evidence G2-G4 are stockings)

Counsel for the plaintiff relied on the witness statements and testimony of the plaintiff witnesses PW4 Musa Ndyanabo who was present when the fire gutted the plaintiff's cottages. PW4 stated in his witness statement that he saw the fire being blown to the bush below the lodge and the lodge caught fire and that he, the other officers of the plaintiff and some village members tried to stop the fire in vain. On cross examination he maintained that the strong wind was blowing from the park's direction.

PW5 Katuramu Patrick, a boda boda rider at Kyambura Boda stage stated in his witness statement that he saw the fire at Kyambura Game lodge and he and other colleagues rushed to the lodge to try and stop the fire in vain because it was too much, managing to only save two cottages. He also stated on cross examination that on that day, he did not see any Uganda Wildlife Authority (UWA) members carry out park burning but stated that the park is usually hot in the month of January. PW6 Muramuzi Moses D/ASP who investigated the matter stated that according to his investigations, the blame ought to be on the institution of UWA because his investigation covered that the seat of the fire was in the national park.

[12] Counsel for the defendant in response stated that counsel for the plaintiff was relying on hearsay evidence of the plaintiff's witnesses and pure speculation to prove that the defendant was negligent. He stated that since the fire never started from the National Park, UWA had no duty of care discharged upon them.

DW1 Owesiga Benard a range guide at the National Park stated in his witness statement that when he noticed smoke coming from Kyambura Game Lodge, he quickly informed the warden in-charge Mr., Musana Yoweri about the fire at the Lodge who said he would contact the monitoring and research unit to come and extinguish it before it could spread further. Mr. Musana was never brought to testify and corroborate that testimony.

DW1 Oyesiga Benard also stated that when he reached the lodge premises, the cottages had already burnt down. Further on cross examination he stated that he tried to stop the fire through back burning.

DW2 Tumuramye Charles stated on cross examination that he never saw the fire starting but also stated that it started from the community and not the National Park. He also stated that the workers of the plaintiff refused to help put out the fire because they had not been paid their salaries.

DW3 Odongo Sulaiman also stated that the fire never started from the game park but rather he saw it come from the direction of the lodge instead.

### Resolution.

[13] Counsel for the plaintiff further argued that the defendant UWA had a duty of care to the plaintiff to ensure that it conducts its activities in a manner that does not endanger the plaintiff's business. That this duty was breached when the defendant employees failed to prevent the fire they started from spreading and destroying the plaintiff's business resulting in colossal losses. He also submitted that the defendant should have employed mechanisms to prevent the said fire from spreading to the plaintiff's business.

On the other hand, counsel for the defendant stated that no duty of care was owed to the plaintiff by UWA because they were not involved in the fire that burnt down the plaintiff's lodge.

[14] Negligence by definition deals with the breach of a duty of care by the defendant towards the person to whom the duty is owed. In the case of Tororo Cement v Frokina International Ltd Civil Appeal No.2 of 2001 it describes negligence as:

"a breach of duty of care and skill by the defendant towards a person to whom the defendant owes that duty; and the breach of duty has caused that other person, the plaintiff, without

## contributory negligence on his part, injury to his person or property."

To succeed in a tort of negligence, one must prove the following; (See Donghue v Stevenson (1932) AC 562, Grace v General Civil Suit No.223 of 2015

- a. The defendant owed him or her a duty of care - b. That there was a breach of duty of care - c. That damage which is not too remote resulted to him as a result of the breach.

The plaintiff also averred that the defendant is vicariously liable for the negligence of its servants who without any justifiable reason allegedly neglected, ignored and blatantly refused to stop park fires from burning the plaintiff's business. Black's Law Dictionary 11th Edition (2019) defines vicarious liability as; Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.

[15] On analysing the evidence on record, the plaintiff has not adduced evidence to prove its averment that the defendant's officials prevented them from maintaining fire lines along the park boundaries which would have been instrumental in preventing the fire from spreading to Kyambura Lodge. The plaintiff relied on an email correspondence in which the defendant interacted with a one Haruna Kirya asking him why officials of UWA were threatening to arrest the defendant's official for maintaining fire lines. No other evidence was adduced to corroborate this claim.

Counsel for the plaintiff also mainly relied on hearsay evidence. Hearsay evidence is inadmissible.

In the case of Maina wa Kinyatti v Republic (Cr. Appeal No. 60 of 1983) 1984] eKLR:

# "Hearsay or indirect evidence is the assertion of a person other than the witness who is testifying, offered as evidence of the truth of that asserted rather than as evidence of the fact that the assertion was made. It is not original evidence."

In the instant case, only one witness, PW5 Muramuzi Moses claimed to be an eyewitness who saw the fire come from the National Park towards the Lodge. All the other plaintiff witnesses stated that they were not there when the fire started or saw it starting but rather that they heard there was a fire and later arrived at the scene.

However, none of the plaintiff's witnesses adduced any evidence to show that the defendant's officials were responsible for starting the fire. Even the reports on PExh3a and PExh4 are general reports with no finding or evidence as to who started the fire. PW5 who authored PExh3a only stated that he saw that the seat of the fire was in the National Park. The plaintiff adduced no further evidence to prove that the defendant's officials were responsible for starting or causing the fire. Furthermore, the plaintiff claims the defendant's officials neglected to help put out the fire and only came after 8 cottages had been burned down.

According to PW6 Musa Ndyanabo, the plaintiff's security officer's witness statement, the police fire brigade arrived too late.

The plaintiff also admitted that the defendant's officials helped put out the fire despite reaching the lodge late when 8 cottages had already burned down. No evidence was adduced to corroborate this claim either.

The plaintiff also continuously mentioned that a strong wind blew the fire towards Kyambura lodge causing it to burn down. The damage is too remote to conclude that the defendant's officia's actions or omissions resulted in a breach of duty of care, given that no evidence has been adduced to prove that they are the ones responsible for the fire.

The onus is on the plaintiff to prove that indeed the defendant's actions caused damage to its properties and on a balance of probabilities, the plaintiff failed to do so.

Issue 2 is therefore answered in the negative.

In the result, since the defendant is not responsible for starting the fire or causing damage to the plaintiff's property, issue 3 is resolved in the negative.

This suit is therefore dismissed. Each party bears their own costs in order to foster harmony among the parties. The parties are each advised to have in place a comprehensive firefighting plan given that the wild fires are common during the dry season.

Dated, delivered and signed at Mbarara this 30th day of April 2024.

#### Joyce Kavuma Judge