Salim Omari v. Jackton Ongea, Tanga Civ. App. 2-A-71; 31/7/72, Bramble, J.

 

Salim Omari v. Jackton Ongea, Tanga Civ. App. 2-A-71; 31/7/72, Bramble, J.

The appellant gave the respondent permission to use part of his land. When clearing this portion the respondent not ire to the grass and in spite of precautions taken the fire escaped because of strong winds and burnt the whole of the appellant’s shamba. The issue was whether the respondent was liable in damages in these circumstances.

            Held: (1) “The learned Resident Magistrate relied on a passage by Biron Ag. C .J. in Rehmtulla v. The commissioner of Transport (1969) H.C.D. n. 293 which reads as follows ……. “It is, I consider, well established in law that to hold an occupier of premises liable in damages for fire breaking out on such premises, there must be positively established, negligence in his part.” This statement of the law was induced by the Five Prevention (Metropolis) Act 1771, which provided that “no action, suit or process whatsoever shall be entertained or prosecuted against any person on whose house, chamber, stable, barn or other building or on whose estate any fire shall -------- accidentally begin.” …… At common law a person was bound to make good any damage caused by a fire which started on his premises and moved to another. The Act quoted above restricted this absolute liability only in so far as a fire was accidental i.e. produced merely by chance or where the cause could not be traced. The passage in the judgment cited above was not a comprehensive statement of the law. The rule I Rylands vs Eletcher (1866) L.R. 1 Ex 265 still applies. There Blackburn J. said “We think that the true rule of law is that the Peron no for his own purpose brings on his lands and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damages which is the natural consequence of its escape.” There are exceptions to the rule in the case where damage is caused by an Act of God, default of the Plaintiff, or act of a third party at statutory authority. Subject to these exceptions if an occupier of lands starts a fire intentionally or by negligence he is under a duty at his peril to prevent it from doing damage to others.” (2) “What was set up a  defence was that the damage was due to an Act of God in that reasonable precautions were taken to confine the fire to the respondent’s land but it was blown into the adjourning shamba. The learned trial magistrate considered this to be an Act of God. There was no evidence to show what the intensity of the wind was or that it was anything in the nature of a storm. An ordinary high wind is something quite usual or natural and the precautions taken should have been such as to anticipate a high wind. I consider, with due respect to the trial magistrate, that the circumstances did not show an Act of God as would absolve the respondent form liability. He was negligent in that he did not guard against a foreseeable eventuality and for this reason I allowed the appeal with costs.”