Rehmtulla Bandali v. The Commissioner of Transport, The East African Railways and Harbour Administration. Civ. Case 157-D-1967, 3/7/69; Biron Ag. C.J.

Rehmtulla Bandali v. The Commissioner of Transport, The East African Railways and Harbour Administration. Civ. Case 157-D-1967, 3/7/69; Biron Ag. C.J.

By a lease entered into in or about March 1966, the plaintiff demised to the Administration premises situate at Vwawa. The

Premises were destroyed by fire on the 27^th November 1966 and the plaintiffs file a plaint on the 27^th December 1967 claiming damages both in contract and in tort. In contract he claims a breach of condition in the lease not to use the premises for purposes other than as a Road Service Station and in the alternative on an implied term not to store, case or allow to be stored any hazardous articles or substance likely to cause damage to the premises. In tort that the fire was caused as a result of the defendant’s negligence in filing to take proper care and precaution to safely store two drums of petrol, thereby leading to their catching or accelerating fire. Before dealing with the substantive claim the court determined as a preliminary point of law whether the claim was time-barred. The Administration contended that by Section 93 (b) of the East African Railways and Harbours Act no action or legal proceedings shall lie against the Administration unless it is commended within twelve months of the act complained of. The plaintiff’s claim having been instituted thirteen months after the act was therefore time barred. In the counter submission it was stated that by Section 93(b) o the above Act no action would commence until at least one month after the written notice has been served on the defendants, and that Section 15(2) of the Indian limitation Act 1908 provided that in computing periods of limitation for suits the period of notice where such is given shall be excluded, hence the suit was no time barred.

            The Administration then argued that the two sections referred to being seemingly inconsistent provisions of the Treaty for (High Commission) Order-in-Council, 1947, and the Interim Constitution of the United Republic of Tanzania shall apply to the effect that where there is any inconsistency between the 1(ca) laws of the High Commission, the latter shall prevail.

            Held: (1) “I consider, and so hold, that here is no inconsistency between section 15 (2) of the Limitation Act and section 93 (b) of the East African Railways and Harbours Act, but that they are mutually complementary, and both can be applied without one infringing the other; that in computing the period of limitation, the period of notice is excluded. I, therefore hold that the claim is not time-barred.” (2) The notice of and was aware of a warranty or condition in an insurance policy taken out buy the plaintiff prohibiting the storage of petrol. (3) “To deal first with the claim as laid under contract: Although Mr. Kuss submitted, though not with any great force, that as a Road Service Station, petrol would normally be handled and stored, as I think, sufficiently demonstrated, taking into account the terms of the lease, including the obligation of the landlord to insure, and the conditions or warranties of the policy of insurance he effected in performance of his part of the agreement, or which the Administration had due notice and was well aware, I have not the slightest hesitation in holding that in storing, as it did, the two 44-gallon drums of petrol on the premises, the Administration was in breach of its agreement with the plaintiff.” (4) “To turn to the issue in tort: I will, I hope, be forgiven if I deal with the points of law involved rather briefly, though not too summarily, and confine myself to principles which, I think, well established, without citing any cases in support

thereof. It is, I think not disputed that the law in this country with regard to liability for fire is the same as in England, as provided for in section 2 of the Judicature and Application of Laws Ordinance (Cap. 453 – Supp. 61) – Section 2(1) and 2(2) …… Although in England, liability for fire was at one time absolute, since the passing of the Fire Prevention (Metropolis) Act, 1774, which extends to the whole country, “no action, suit or process whatsoever shall be entertained or prosecuted against any person in whose house, chamber, stable, barn or other building, or on whose estate any fire shall ….accidentally begin”. Without citing any authority, it is well established that responsibility for damage will not lie unless negligence has been established…. I consider that it is now well established that in cases of fire, the doctrine of res ipsa loquiton so as to render the occupier of the premises wherein a fire breaks out liable without any further proof of negligence, will not apply. Without indulging in an academic exercise as to how fires can and do break out, 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 on his part ….. on this question of negligence, the stationmaster stated that the two drums of petrol were kept in the store under a pile of about 50 coffee bags, each weighing about 200-300 lbs. I have not the slightest hesitation in finding that to so store two 44-gallon drums of petrol constitutes negligence. Further, It also constitutes a breach of statutory duty, in that it violates rule 28 of the Petroleum Rules made under the Petroleum Ordinance (Cap. 225 – Supp. 61), ( which stipulated that alliance was required for the storage of petroleum except under certain circumstances which did not apply in this case. Further, the stationmaster, although he was rather vague on this, as on other aspects, did not know how many fire extinguishers were kept on the premises, or whether they were all not in working order – as noted, the one he did try did not work. He, apparently, assumed that the others, if others there were, were also not in working order. That, again, to my mind, constitutes negligence on the part of the administration. Further still, the stationmaster does not appear to have made any great effort to extinguish the fire, though in fairness to him, it should be added that it is quite possible that once having seen that the fire had taken hold and was spreading, the fear that it would reach the petrol drums may well have impelled him to vacate the premises. Although this was specifically put to him, he neither confirmed nor denied this, but it is a possibility. Conversely, if he was not put off by the presence of the petrol drums, then his failure to take proper steps to extinguish the fire would constitute negligence. It may well be a circuitous argument, but whichever way one looks at it; there was negligence on the part of the Administration, and its servant or agent. Pausing there, I have found that in storing the petrol on the premises, the Administration was in breach of contract and negligent as well, that would not ipso facto render the Administration liable for the damage caused by the fire, unless such breach of contract, negligence and breach of statutory duty were or was the cause of the outbreak of the fire …. [T]he fact remains that the fire started a considerable distance away from where the petrol drums were stored. In fact, according to the witness, they did not explode until about ten minutes after the

fire had started. Be that as it may, it is abundantly clear that the outbreak of the fire was not due to the petrol drums stored on the premises. The administration, therefore, cannot be held liable for the outbreak of the fire. The matter, however, still does not end there, for even if the Administration was not responsible for the outbreak, if on account of its breach of contract, negligence and breach of statutory duty, the damage was aggravated, the Administration would be liable for the damage caused in corresponding proportion to the excess damage caused by the presence of the petrol drums on the premises. It is, therefore, necessary to apportion the damage caused between the original outbreak of the fire and the excess caused by the petrol drums being on the premises. I must confess at once that I find this a well-nigh impossible task. But that does not absolve the Court from determining the question. The plaintiff had insured the premises for Shs. 35,700/-. In evidence he gave the value of the premises as Shs. 35,000/- The premises, he contends, have been completely destroyed. His evidence as to that is not disputed, but rather borne out by the photographs produced. He, therefore, claims as damages Shs. 35,000/-. Reviewing the evidence as a whole, and it cannot be overstressed how sparse and unreliable it is, one cannot, to my mind, escape the conclusion that but for the presence of the petrol drums on the premises, the damage caused by the outbreak of the fire would have been very, very much less than the damage that actually resulted …….. On due consideration of the evidence and of the surrounding factors as a whole, I consider a fair apportionment of the damages to be borne by the parties respectively, of the total of Shs. 35.000/-, to be Shs. 15,000/- due to the outbreak of the fire itself, for which the Administration cannot be held responsible or liable, and Shs. 20,000/- for the damage caused by the presence of the petrol drums on the premises, for which the Administration is liable.”