Mumbere and 2 Others v Uganda Wildlife Authority (Civil Suit 65 of 2022) [2024] UGHC 888 (12 July 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA CIVIL SUIT NO 65 OF 2022 (FORMERLY MASINDI HIGH COURT CIVIL SUIT NO.27 OF 2022)

#### CONSOLIDATED WITH CIVIL SUIT NO 74 OF 2022

(FORMERLY MASINDI HIGH COURT CIVIL SUIT NO 030 OF 2022)

#### **1. ERIC MUMBERE**

<table>

2. KATUSIIME NABASA :::::::::::::::::::::::::::::::::::: **3. KATO SULEIMAN**

#### **VFRSUS**

#### UGANDA WILDLIFE AUTHORITY::::::::::::::::::::::::::::::::::::

### Before Hon. Justice Byaruhanga Jesse Rugyema

## **JUDGMENT**

### Background:

- This consolidated suit relates to a tragic incident involving human-wildlife $[1]$ conflict at Kibale National Park resulting in severe personal injuries to the plaintiffs and the loss of livestock. The plaintiffs, through two consolidated suits, seek compensation from the defendant, Uganda Wildlife Authority, under the tort of negligence. The incidents occurred on April 8, 2022, when a stray lion under the care of the defendant viciously attacked the 1st and 2nd plaintiffs and killed the 3rd Plaintiff's livestock. Despite the plaintiffs' demands, the defendant refused to provide compensation or support. Consequently, the plaintiffs filed this lawsuit, alleging negligence on the part of the defendant for recovery of compensation. - [24] The Plaintiffs' consolidated claim is that on the $8^{th}$ day of April 2022 at around 5am at Kasara "A" village, Rwabaranga Parish, Mpeefu Sub-County, Kagadi District, the 3rd Plantiff's livestock to wit 3 (three) sheep and a goat were attacked and killed ferociously by a stray lion owned by the Defendant. Thereafter, on the same day at around 10am, at Mpeefu B village, Sioni Parish, Mpeefu Sub-County, Buyaga West County, Kagadi District, the 1st Plaintiff while in his garden digging was attacked viciously by the same stray lion under the care of the Defendant and grievously wounded. The lion jumped onto the 1st Plaintiff, bit his hands, his face, shoulders and chest causing him grievous harm and serious personal injuries, he was then rushed to Buhinga Regional Referral Hospital in Fort Portal for medical attention.

- [3] On the same day, the $2^{nd}$ Plaintiff was violently attacked by the same stray lion in his garden plantation at **Kasara village**, **Rwabaranga Parish**, **Mpeefu Sub-**County, Buyaga West County, Kagadi District. The lion jumped and grabbed him by his left thigh, his left arm and grievously injured his back with its firm claws. The lion bit and scratched him viciously on his body causing him serious personal injuries. The 2nd Plaintiff was later taken to Kagadi Hospital where he received treatment. - $[4]$ The Plaintiffs called upon the Defendant to meet the medical bills and compensate them for the serious personal injuries suffered and damage caused by the Defendant's lion unsuccessfully. The Defendant adamantly refused and/or ignored to heed their call. The Plaintiffs sued the Defendant for a declaration that the Defendant was negligent when it failed to contain the lion in a wildlife conservation area (**Kibale National Park**) leading to the attack resulting into personal injuries, loss of livestock and the resultant collateral damage. The $1^{st}$ and $2^{nd}$ Plaintiffs seek compensation for personal injuries sustained during the lion attack and the 3rd Plaintiff for the livestock lost. - The Plaintiffs sued in negligence and contend that the lion ferocious attack on $[5]$ them and livestock was caused by the negligence of the Defendant that failed to prevent the lion from escaping from the gazetted game reserve and/or conservation area (Kibale National Park) or keep the lion in a protected area. The Plaintiffs hold the Defendant liable. The Plaintiffs particularized negligence as follows;

## PARTICULARS OF NEGLIGENCE:

- $(a)$ Failing to cage, control, securely keep, fence-bound a wild inherently dangerous animal (lion) or in any way try to avoid the lion's escape or trespass onto the private properties of the Plaintiffs thereby causing personal injuries to them and loss of livestock. - The Defendant was guilty of negligence in leaving the vicious lion $(b)$ unattended outside the conservation area, thus straying into private gardens of the Plaintiffs causing the resultant damage onto the persons of the Plaintiffs and loss of livestock. - $(c)$ That the Defendant knew or ought to have known and contemplated that the lion was vicious and should have taken extra steps in containing it to prevent injury to life and limb of the Plaintiffs and loss of livestock - $(d)$ The Defendant in the circumstances carelessly and/or recklessly, without due care and attention, let loose, released, failed to keep, prevent the escape and /or caused the escape of a vicious lion on to the private residence or gardens of the Plaintiffs thereby occasioning grievous harm to them and loss of livestock - The Defendant failed in its general duty to protect the life of the $(e)$ plaintiffs from its lion or vicious wildlife attack, thus the personal injuries suffered by the plaintiffs, are the natural and probable consequence of the defendant's negligence. - $(f)$ The failure to monitor and strictly track the movements of the lion.

- In short, the plaintiffs contend that the defendant failed to contain the lion within a wildlife conservation area, leading to the attacks and subsequent injuries and loss. They argue that the defendant's negligence includes inadequate measures to secure the lion, failure to prevent its escape, and lack of proper monitoring of its movements. Furthermore, the plaintiffs invoke the doctrine of *res ipsa loquitur* to establish the defendant's negligence. - The Defendant denied the plaintiffs' claims and averred as follows; that it $[6]$ received information about a lion which was within the vicinity of **Kobushera** village that had allegedly killed a number of Livestock. A team from Kibale **National Park** in the Company of Police officers moved to **Rwabaranga Village** in Mpeefu Sub County in Kagadi District where the lion was last spotted. The team moved to the said area in order to evaluate the situation and get the lion so that it is translocated to a protected area. Upon arrival at **Rwabaranga village**, the team found a boisterous crowd of community members armed with machetes, spears and big sticks searching for the lion. The community members where requested to withdraw and return back to their homes as the team and police continued to search for the said lion instead more and more armed people approximately 50 in number from the community gathered raising alarms and noise for the alleged search of one lion. Due to the large number of armed community members, the UPDF soldiers were called upon for their assistance to subdue the crowd. - The Plaintiffs and others opted to pursue the lion instead of heeding to the $[7]$ advice from the Defendant's officials and police to stay away from the lion. With the assistance of the team from UPDF, the lion was spotted and shot dead for the protection of the community members. Unfortunately, the rowdy crowd pounced on the lion and tore it to pieces stripping it of its skin and flesh. - $[8]$ Further that the allegations raised by the Plaintiffs are baseless, misconceived and unfounded. The suit has been prematurely brought before this court and the Plaintiffs have not exhausted the remedies available. The Defendant denied the particulars of negligence laid out in the consolidated plaints and contended that Plaintiffs are not entitled to the general, special and punitive damages. The Defendant lastly intimated that it would rely on the defence of **volenti non** *fit injuria* and/or contributory negligence. - $|9|$ In brief, the defendant denies the allegations of negligence and asserts that it acted appropriately to address the lion's presence in the community. The defendant claims that it took necessary measures to locate and neutralize the lion, with the assistance of law enforcement, due to the imminent danger it posed to the community.

# **Legal representation:**

[10] The Plaintiffs were represented by Mr. Kasangaki Simon of M/s Kasangaki & Co Advocates, Masindi while the Defendant was represented by Ms Jemimah Kajoina of the legal Department of Uganda Wildlife Authority, Kampala.

- Both counsel filed submissions for consideration in the determination of this suit. - Issues for determination in the consolidated suit are: $[11]$ - $1)$ Whether the $1^{st}$ and $2^{nd}$ Plaintiffs were attacked by wildlife. - Whether the $3rd$ Plaintiff's livestock was killed by wildlife. $2)$ - Whether the Defendant is liable for the attack on the 1st-2nd Plaintiff and $\overline{3}$ ) the 3rd Plaintiff's livestock. - What remedies are available to the parties. $4)$

# The burden and standard of proof

[12] In the case of NSUBUGA VS KAVUMA [1978] HCB 307, it was held that;

"In civil cases the burden lies on the Plaintiff to prove his or her case on the balance of probabilities."

Under Section 101 of the Evidence Act, it is provided that 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 and the burden of proof lies on that person. In the present consolidated suit, the burden is on the Plaintiffs to prove their claims and the standard of proof is on the balance of probabilities. To prove their case, each of the Plaintiffs testified in person as PW1-3. The defendant called one witness **Amanyire Wilson**, a Sergeant Ranger in charge of Kagadi out Post who testified as DW1.

[13] I consider addressing issues 1, 2 and 3 together and issue 4 separately.

Issues $1$ , $2$ and $3$ :

i) Whether the $1^{st}$ and $2^{nd}$ Plaintiffs were attacked by wildlife.

ii) Whether the 3rd Plaintiff's livestock was killed by wildlife and

- iii) Whether the Defendant is liable for the attack on the $1^{st}$ - $2^{nd}$ Plaintiff and the 3rd Plaintiff's livestock. - The plaintiffs adduced evidence that on 8th April, 2022 at around 5:00am the $[14]$ 3rd Plaintiff's (PW3) livestock to wit; 3 sheep and a goat were attacked and killed by a stray lion. At around 10:00am, the 1st plaintiff (PW2) while in the garden was attacked ferociously by the same stray lion which grievously wounded him by biting and scratching his hands, face, shoulders and on chest. Later, around the same time the lion attacked and injured the $2^{nd}$ plaintiff (PW3) whom it also found in the garden and caused him serious personal injuries. - [15] It was later at around 11:30 am that the Defendant management got information from the DPC Kagadi that the lion was out at large causing havoc among the communities. In its Press statement (P. Exh.3), the defendant revealed that upon receipt of information regarding the roaming lion the defendant officials got into action and with the help of the UPDF officials the

ravaging lion was neutralized by a fatal shot from a gun. It is not in dispute that the ferocious lion was owned or under the exclusive care of the defendant.

- [16] It is true as counsel for the defendant submitted that in evidence, the $1^{st}$ plaintiff (PW2) stated that upon sustaining grievous harm from the ferocious attacking lion he was taking to Buhinga Regional Hospital and because the injuries were severe, he was referred to **Mulago Hospital** in Kampala. During cross examination, PW2 stated that he never went to Mulago. According to counsel for the defendant this was a contradiction which rendered PW2 a liar. I do not think this correct. Counsel did not put into context **PW2's** answer to the question. Whereas PW2 was referred to Mulago hospital because of the severity of the sustained injuries, he never actually went to Mulago and this explains why even the medical documents he presented none is from Mulago. There is instead evidence from PW2 that he was taken to Maberenga, a natural herbalist for treatment. In the premises I do not see the alleged contradiction in the evidence of the $1^{st}$ plaintiff (PW2). - $[17]$ As regards the 1st plaintiff's other name "Latif", he explained how he acquired the name upon conversion from Christianity to Islam though he still maintained his Christian traits especially the name Eric and even took oath using a bible which is meant for Christians. His National identity card reflected his three names: Eric Mumbere Latif. The defendant did not adduce any evidence to the contrary, i.e that it is another "Eric Mumbere" other than the $1st$ plaintiff who was attacked and injured by the lion. - The claim that the plaintiffs' exhibits were neither certified nor in their original $[18]$ form and therefore that they are inadmissible, I find that the defendant is estopped from raising such claims because the documents were admitted without any objection from the defendant. The case of Smt. Yashoda Vs Smt. Shobha AIR, (2007) SC 1721 referred to me by the defendant's counsel is therefore not applicable in the instant case. - Lastly, counsel for the defendant submitted that merely because the liver, $[19]$ spleen, pancreas and kidneys of the 1st plaintiff are normal with no **recordable infra abdominal injury, then that it is inconceivable that he was** attacked by a ferocious wild animal. I find that the evidence on record clearly show how the 1st & 2nd plaintiffs sustained grievous injuries from the attack of the lion but by the hand of God, the injuries were bodily harm not affecting the internal organs thereby rendering the attack none fatal. Therefore, the fact that the internal organs of the $1^{st}$ & $2^{nd}$ plaintiffs remained safe despite the ferocious attack of the lion does not render the plaintiffs' evidence unbelievable and/or not credible. The $1^{st}$ & $2^{nd}$ plaintiffs sustained serious injuries on legs, arms, chest face and other parts of the body as clearly displayed by the exhibited photos, (P. Exh.3). - In view of the totality of the above, this court finds that the plaintiffs have $[20]$ established, on a balance of probabilities, that they were attacked by a wild lion under the care of the defendant. The evidence, including eyewitness

testimony, medical records, and photographic evidence, corroborates the plaintiffs' accounts of the vicious attacks and resulting injuries. The 3rd plaintiff/PW1 reported that in addition to the lion mauling his animals and injuring people, it had killed a UPDF officer. Additionally, the defendant's own press release (see P. Exh.4) confirms the presence of the lion outside its conservation area, substantiating the plaintiffs' claims. Regarding the loss of livestock, the evidence provided by the third plaintiff, supported by photographs and correspondences seeking compensation, demonstrates that the defendant's lion was responsible for his livestock killings. The defendant's liability for the attacks and loss is further reinforced by its statutory duty under the **Uganda Wildlife Act 2019** to manage and protect wildlife within its conservation areas.

[21] The **Black's Law Dictionary 11th Edition 2019** defines Negligence to mean;

"The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation: any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly or willfully disregardful of others' rights; the doing of what a reasonable and prudent person would not do under the particular circumstances, or the failure to do what a such a person would do under the circumstances."

Actionable negligence consists in the neglect of the use of the ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff has suffered injury to his person or property, see Nabwami Grace Vs A. G. HCCS No.227 of 2015.

- In the case of *Donoghue V Stevenson* [1932] AC 562, negligence is defined as $[22]$ the omission of an action that a reasonable man would do or performing an action that a reasonable man would not do. For Negligence to be established, it must be proved that; - 1. The Defendant owed to the Plaintiffs' a duty to exercise due care - 2. The Defendant failed to exercise the due care, and

- 3. The Defendant's failure was the cause of the injury or damage suffered by that man, See also *H. Kateralwire vs Paul Lwanga* [1989-90] HCB 56. - [23] Leaned Counsel for the Plaintiffs submitted that the Defendant in the instant matter partly derives its duty of care from statute. Section 3(1) of the Uganda Wildlife Act, 2019 provides that the ownership of every wild animal and wild plants existing in its wild habitat in Uganda is vested in the Government on behalf of, and for the benefit of, the people of Uganda. Section 6 of the Act, provides for the functions of the **Uganda Wildlife Authority** and enacts **under** 6(a) that the Authority is mandated to ensure the sustainable management of wildlife conservation areas. Section 6(f) provides that the Authority is to

- establish and implement management plans for wildlife conservation areas and for wildlife populations outside wildlife conservation areas. Section $6(1)$ (i) provides inter alia, that the Authority is to monitor and control "problem" animals. - [24] Furthermore, Section 84(1) of the Uganda Wildlife Act 2019 provides that where a person - (a) Suffers bodily injury or is killed; or - (b) Suffers damage to his or her property, by a wild animal listed in the third schedule, the person or his or her legal representative may submit a claim to the Wildlife Compensation Verification Committee. The **fourth** schedule and Item 107, in the third Schedule of the Uganda Wildlife Act **2019** provides for a **lion** which the Act recognizes as a problem animal.

## Application of the doctrine of Res ipsa Loquitur

- $[25]$ *Res ipsa Loquitur* is latin for "the thing or facts speak for themselves". It is a legal doctrine that allows the plaintiff to establish a presumption of negligence on the part of the defendant without having to present direct evidence of the defendant's breach of duty, see Juma Asire Vs Nyanza Textile Ltd, (1975) HCB 292. In this case the defendant had exclusive control and management of the ferocious lion that escaped from the protected area. In the ordinary course of things, a lion is naturally contained in a wildlife protected area because of its ferocious nature. It cannot escape from the protected area if those who have the exclusive control of and its management use proper care. There is therefore reasonable evidence, in absence of any explanation by the defendant that the escaping of the lion from its protected area to the communities where it caused death of animals and injury to people arose from want of care by the defendant officials. There is no evidence and in the absence of an explanation as to how the lion escaped, the defendant's negligence would have to be determined on that basis. The defendant had the responsibility for the control of the lion through monitoring and tracking as well as responsibility for the protection of the plaintiff. The defendant's officials failed in their duty of care. - The doctrine falls in the requirements of Section 106 of the Evidence Act $[26]$ which provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In this case, the burden shifted to the defendant to rebut a presumption negligence on the part of the defendant which onus it has failed to discharge. In the premises, I find the doctrine of *Res ipsa loquitur* applicable in this case establishing negligence on the part of the defendant.

## The strict liability rule

In the Canadian case of David Balac & Anor Vs African Lion Safaris, Can LII $[27]$ 2028 (SC), the court elucidated that in most cases, as in the case of tigers or lions, the issue for consideration under the doctrine of strict liability is one of control.

".... In earlier times, this issue was referred to as the issue of escape. Strict liability for wild animal attacks shares a common heritage with other strict liability claims, such as the "escape" of water dammed up on a neighbour's property. But for our purposes, it is sufficient to note that a wild animal need not escape for its keeper or owner to be held strictly liable. Rather, all that need occur is that the wild animal must be found to be outside of the control of the owner or keeper at the time it caused harm..."

This case is not different from the present case where the lion was found out of the protected area and outside the control of the Defendant. The defendant is strictly liable for the escape and damage occasioned to the plaintiffs by the lion. Compensation in this case and/or similar cases would be sought under tort law, which governs civil wrongs, including personal injuries and wrongful deaths caused by the negligence or intentional acts of others, including animal owners or authorities responsible for managing wildlife.

- [28] Under the law of negligence, strict liability is placed on keepers of animals deemed to be naturally dangerous to man. A lion is one such an animal. Any harm done by a wild animal will result in strict liability for its owner or keeper. The presumption of danger applies to the entirety of a species and is not limited to a specific individual animal. The gravity of possible consequences is a major factor in considering precautions. The more serious the likely damage, the greater the precaution required and this is considered in determining the level of fulfillment of the duty of care, see Paris Vs Stepney Borough Council [1951] A. C. 367, [1951] 1 All ER 42 (H. L). - [29] In the instant case, under the law, the Defendant is the keeper of the lion which attacked the $1^{st}$ - $2^{nd}$ Plaintiffs and the $3^{rd}$ Plaintiff's livestock. Counsel for the Plaintiffs invited this court to find that the Defendant failed to exercise the due care and the defendant's failure was the cause of the injury or damage suffered by the Plaintiffs. The Plaintiff's claim is tortious in nature and thus involves the common law obligation under the principles of Donghoue v Stevenson (1932) (supra) & Rylands V Fletcher (1868) LR 3 HL 330 on the part of the Defendant to compensate the Plaintiffs herein for injuries suffered and damage caused. I find that it is not in dispute that the defendant's lion went out of its conservation area and marauded areas of human settlement. This is supported by the Defendant's Press Release issued on April 9, 2022 received in evidence as **P. Exh.** 4 in which the Defendant admits that on the $8th$ day of April 2022 a stray lion went out of its conservation area attacked 3 people and killed a number of livestock. The evidence of $1^{st}$ - $2^{nd}$ Plaintiffs that they were injured by the lion and the 3rd Plaintiff's evidence that his livestock was killed by the same lion at different times of the same day before it was finally shot is corroborated by the defendant's press statement to prove the fact of the attack and injuries sustained. - [30] The Plaintiffs in further proof of their claim have each provided evidence of their attack and injuries occasioned to them by the lion. The 1st Plaintiff/PW2

- testified to how he was grievously injured by the Defendant's lion. This evidence was corroborated by photos of his serious injuries and medical records by which he was attended at hospital (See P. Exhs. 1-3). In court, I observed his left hand was visibly disabled due to the injuries suffered in the attack and his face was scarred. The 2nd Plaintiff/PW3 also testified and narrated how he was viciously attacked by the lion whilst in his garden. The lion viciously bit and scratched him leaving him with serious personal injuries. He produced photos of his injuries and a video clip showing his injuries immediately after the attack (See P. Exh. 5). The 3rd Plaintiff/PW1 testified that his animals to wit three sheep and a goat were all attacked and killed by the lion. Photos of the dead livestock were exhibited in evidence and letters addressed to the Defendant seeking compensation for his dead livestock. They were received in evidence as **P. Exhs.1-4** respectively during the testimony of the $3rd$ Plaintiff/PW1. - $[31]$ Under the tort of negligence, an obligation is imposed on one of the parties as a matter of law. A Defendant is generally without liability so long as he or she is without fault. However, a wild animal need not escape for its keeper or owner to be held strictly liable or at fault. Rather, all that need to occur is that the wild animal must be found to be outside of the control of the owner or keeper at the time it caused harm. Under the rule in **Rylands v Fletcher (supra)**, the principle laid down is that if a land owner brings a dangerous thing onto his land and it escapes and causes damage, the owner is liable. Having found that the Defendant is mandated under the **Uganda Wildlife Act 2019** to keep and manage wild animals in its conservation areas, liability for any damage or injury as a result of wildlife outside of its conservation area is squarely on the Defendant. In such a case of strict liability, contributory negligence or contributory fault on the part of the victim as claimed by the defendant in this case is not a valid consideration. - $[32]$ It is not in dispute that the suit lion strayed outside the Defendant's conservation area. The lion according to the Defendant's Press statement had been sighted in Mpeefu Sub County, Kagadi District outside Kibale National **Park.** Each of the Plaintiffs' lives within Mpeefu Sub County in Kagadi District and of all residents in the area and livestock were at risk of being mauled to death by the lion on the loose. The harm and injuries suffered by the Plaintiffs were caused by the lion's presence outside Kibale National Park $or$ conservation area. Each of the Plaintiffs led credible evidence of personal injuries sustained during the lion attacks on them and the 3rd Plaintiff's dead livestock killed by the lion. I thus find that the personal injuries suffered by the Plaintiffs and loss of livestock were caused by the lion and the defendant is liable. In the present case, it has been proved by the Plaintiffs that the $1st$ and $2^{nd}$ Plaintiffs were attacked and injured by a wild animal (lion) and the $3^{rd}$ Plaintiff's livestock was killed by the same lion. This wild animal or lion was present in the Plaintiffs' community under the ownership of the Defendant its ostensible keeper. The lion was not under the effective control of the Defendant and it freely roamed about killing livestock and attacking people

91 Page - without restraint. This court is satisfied that these facts led in evidence afford the Plaintiffs a cause of action against the defendant in negligence. - The defence of Volenti non-fit injuria $\mathbf{e}$ - $[33]$ The sole remaining issue arising out of the defense pleadings is whether the Defendant could establish that the victims' voluntarily assumed the risk of harm to themselves or to their livestock, volenti non-fit injuria (a common law doctrine which states that if someone willingly places himself or herself in a position where harm might result, knowing some degree of harm might result, he or she is not able to bring a claim against the other party in tort or delict, Cutler Vs United Diaries, (1933) 2 KB 297. In order to establish this defence, the onus is on the defendant to prove that the plaintiff expressly or impliedly agreed to incur such a risk voluntarily, with full knowledge of the nature and extent of the risk. The defendant must show that the plaintiff fully comprehended the risk of injury that materialized and freely chose to accept it, see Acaye Richard Vs Saracen (U) Ltd & 2 Ors, HCCS No.63 of 2011. - What actually happened in this case is that the communities upon learning that $[34]$ a lion had strayed and was among them killing animals and threatening the lives of people, they mobilized themselves while armed with machetes, spears and big sticks and pursued the lion as a way of averting the danger the lion had posed to the community. So the communities' act towards the lion was an act of defence. Information had spread that it had killed animals and grievously injured people. It indeed as reported by $3rd$ plaintiff/PW1 ended killing a UPDF officer who was among the general public pursuing it. As regards the 1st & 2nd plaintiffs, it was between 9-10:00am or thereafter when they were invaded by the lion in their gardens. It inflicted on them the untold injuries while for the $3rd$ plaintiff, it was at dawn (5:00am) when it descended on his three sheep and goat and mauled them. Definitely in such a case there is single element of assumption of risk on the part of the victims/plaintiffs or that they contributed to the negligence. - In the premises, I find that the victims did not assume the risk of attack or $[35]$ injury to livestock. Besides, the Defendant did not give the particulars of contributory negligence. Therefore, the claim of contributory negligence or voluntary assumption of risk has not been proved by the defendant. The defendant's sole witness, **Amanyire Wilson** (DW1) was not present at the time the plaintiffs were attacked or their livestock killed. His evidence could not rebut the evidence of the Plaintiffs on when, where and how they were attacked. It was submitted for the Plaintiffs that the Defendant which controls dangerous wildlife lets them out or fails to keep them in a controlled area, risks that a victim will suffer harm outside the protected area, then places its entire position on the rarely accepted defence of voluntary assumption of risk. The defendant's defense of contributory negligence or voluntary assumption of risk is unsupported by evidence and therefore not valid. The defendant failed to demonstrate that the plaintiffs knowingly exposed themselves to danger or contributed to the attacks in any way. Besides, I have already observed, in cases

of strict liability like the present one, contributory negligence is not a valid consideration. I find that the Defendant has no defence to the Plaintiffs' claim. I hold the Defendant liable to the full extent of the plaintiffs' losses, without any contributory negligence on their part.

## Duty to compensate victims of damage and injuries occasioned by wild animals

[36] The question whether **Uganda Wildlife Authority** has only administrative duties of managing and protecting wildlife and not compensation of victims, as the Defendant seems to suggest in defence, was answered by the Supreme Court of Kenya in the case of Kenya Wildlife Service vs. Rift Valley Agricultural Contractors Limited [2018] eKLR that:

> ".. A global comparison of laws and jurisprudence relating to animal and wildlife management normally provide that an entity charged with such a management task also collects the revenues generated from activities relating to the same. The rationale being that such revenue supports the costs of management and any related outcomes, including compensation for damage made by animals and wildlife. The architecture of the current law in Kenya the Wildlife Conservation and Management Act No.47 of 2013. follows this rational principle - that the management of national parks lies with Kenya Wildlife Service which is also the revenue collector at these parks ...... The Wildlife Act gives responsibility to Kenya Wildlife Service as the Park revenue collector to compensate for damage occasioned by wild animals....."

- [37] I am persuaded by this precedent and inclined to agree with the submission of Mr. Kasangaki Simon for the Plaintiffs that the global trend is that conservation agencies which collect revenue from parks like **Uganda Wildlife Authority** in Uganda pay compensation for the damage arising out of wildlife human conflict. The Plaintiffs are not bound to mandatorily subject themselves to the compensation scheme under the **Wildlife Act**, 2019 and the regulations S. I No 65 of 2022 made thereunder. The Plaintiffs in any case, should have the choice to either claim for compensation under the **Wildlife Act**, 2019 from the Defendant or seek compensation from court as elected in the present case. Section 84 of Uganda Wildlife Act provides thus, - "(1) When a person $\frac{1}{2}$ - a) suffers bodily injury or is killed; or - b) suffers damage to his or her property, - by a wild animal listed in the fourth schedule, the person or his or her legal representative **may** submit a claim to the wildlife *compensation, verification committee.* - (2) The wildlife compensation verification committee shall verify a claim made under this section, and submit the claim to the board together with its recommendation.

(3) The board shall review the claim and if approved, award compensation according to the obtaining market rates."

[38] In this regard, another Kenyan case cited by counsel for the Plaintiffs Kenya Wildlife Services vs. Joseph Musyoki Kalonzo Nairobi C. A. No.306 of 2015 [2017] eKLR. The Court analyzed Section 25 of the Act which is the equivalent of Section 84 of the Uganda Wildlife Act 2019 and held as follows:-

> ".. In our view, even from a literal interpretation, this provision does not oust the jurisdiction of the High Court to hear any matters raised under that Act. If the Act meant to remove those matters from the realm of the High Court or the other courts, then it would have expressly stated so. It gives an aggrieved party an option to go to the committee as first option this in our view was meant to ease, matters for the poor people whose crops and domestic animals are ravaged by wild animals occasionally, and which people may be far removed from the structured judicial systems. We do note that most of the areas that are prone to wildlife-human conflict are in areas that are outside urban areas where courts are situated. The Act in our view meant to make it easier for such people to access justice that is more easily accessible in terms of not travelling long distances and also in terms of simplicity in lodging their claims. It could not have been meant to shut out everybody else who would prefer to pursue their claims before the conventional courts. That would explain the use of the word MAY and the absence of any provision expressly limiting or ousting the jurisdiction of the High Court.

In other words, there is no ouster clause in the Wildlife and *Conservation Management Act, that bars a party from seeking relief* outside the process provided for under the Act.... Section 25 of the Act only gives an aggrieved party an option to pursue its claim either through the process stipulated under the Act or through the court."

I therefore in the premises agree that the Plaintiffs in the instant matter could $[39]$ either claim for compensation under Section 84 of the Uganda Wildlife Act 2019 or lodge a claim to the High Court. This is the only way that would ensure access to justice for all parties affected by wildlife-human conflict. The plaintiffs' suit is therefore not premature as posited by the Defendant on account of not having first applied for compensation under the Uganda Wildlife Act, 2019. In light of the evidence presented and the applicable legal principles, the court finds the defendant liable for the injuries sustained by the plaintiffs and the loss of livestock caused by its lion. The defendant's negligence in managing and controlling the lion outside its conservation area directly resulted in the harm suffered by the plaintiffs. The $1^{st}$ - $3^{rd}$ issues are in the premises found in the affirmative.

#### Issue No. 4:

What remedies are available to the parties.

$[40]$ The Plaintiffs seek remedies to address the physical, emotional and financial toll of the lion attack. These remedies are not only warranted by legal principles but also essential for providing the Plaintiffs with the justice and restitution they deserve.

#### **Compensatory general damages:**

[41] As a general principle, damages in tort are compensatory in nature. A party who suffers damage due to the wrongful act of the other must as much as possible be put in the position he would have been had he not suffered the wrong, Emmanuel Basaliza Vs Mujwisa, HCCS No.16 of 2007. Compensatory damages, also known as actual damages are damages awarded by court equivalent to the loss a party suffered; Birdsall Vs Coolidge 93 US.64 [1876]. The amount is based on the proven harm, loss or injury suffered by the plaintiff. In Esso Standard (U) Ltd Vs Semu Amanu Opio, SCCA No.3/1993, court held thus:

".....compensation to the plaintiff. He must not only be compensated for proved actual loss but also for any injury to his feelings and for having to suffer insults, indignities and the like....."

- [42] Under Section 84(1) of the Uganda Wildlife Act 2019, the Plaintiffs could have pursued compensation through the statutory **Wildlife** Compensation Verification Committee. However, this avenue was not available due to the delayed operationalization of relevant regulations. This provision of the law was not operationalized until the **Uganda Wildlife** (Compensation Scheme) Regulations SI 65 of 2022 that was gazetted on August 5, 2022 after the attacks occurred on April 8, 2022. Since the regulations could not operate retrospectively, the Plaintiffs could not make use of the provision. In any case, the Plaintiffs had the choice to either proceed under Section 84 of the Uganda Wildlife Act 2019 or to file in this court as found above by this court. Since the Plaintiffs have proved their claim under the common law tort of negligence, they are entitled to compensation outside the statutory compensation regime now in place operated by the Defendant, See Kenya Widlife Services v Kinyua Ikabu [2019] eKLR Despite their efforts, the Defendant ignored repeated requests for compensation. Therefore, in light of the Defendant's negligence and the unavailability of statutory remedies, the Plaintiffs seek a declaratory order for compensation to redress the loss and injury they suffered and the same is accordingly granted. - [43] General damages, awarded at the court's discretion, aim to fairly compensate for the loss, injuries, inconveniences and any other form of harm resulting

from the Defendant's actions. Drawing on legal precedents such as Dr. Denis Lwamafa vs Attorney General HCCS No. 79 of 1983 [1992] 1 KALR 21 the Plaintiffs assert their entitlement to restitution for the physical and mental trauma inflicted by the lion attack. Additionally, the Defendant's refusal to acknowledge liability or provide any assistance aggravates the Plaintiffs' suffering, justifying substantial compensation comparable to similar cases. The awards should reflect society's discomfiture of the defendant's wrongdoing and society's sympathy to the plight of the innocent victims, See Hirani Manji Kanji vs Uganda Funeral Services HCCS No.115 of 2022 where court in awarding general damages considered the fact that the defendant tried to deny liability and avoided any contact with the plaintiff or to render any assistance inspite of the glaring evidence of the accident. They ignored or refused to give any medical care or financial support to mitigate the damage. This decision resonates well with the facts at hand where the defendant avoided contact with the plaintiffs and denied liability. The defendant also offered no form of support and/or treatment to the plaintiffs for injuries sustained. I bear these in mind as aggravating factors in assessing the general damages payable in this case.

$[44]$ In the widely publicized international wildlife human personal injury case of David Balac & Another v African Lion Safari 2005 (supra), the appropriate general damages payable in the case of personal injuries sustained in a wildlife attack were exhaustively considered. I consider this precedent applicable to instant matter and helpful in arriving at an appropriate award. For a better understanding, I will give a little detail about the case. In 1996 David Balac and Jennifer-Anne Cowles visited a drive-through safari park in southern Ontario known as African Lion Safari & Game Farm. When the vehicle carrying **Balac and Cowles** entered the **tiger section of the park**, the vehicle was attacked by a 7-year-old female bengal tiger. Three other female tigers followed suit. At the time of the initial attack, all of the windows in the Balac vehicle were closed. The first tiger entered the vehicle through the front passenger window and attacked Balac and Cowles. Two of the other tigers managed to bite Balac's hand through the front drive driver window. Balac and Cowles were severely mauled by the tigers before escaping the tiger section. Court held that African Lion Safari liable for the injuries sustained by Balac and Cowles and awarded them 2.5m USD (two million five hundred **thousand United States Dollars only**) as compensation for personal injuries sustained.

$[45]$ The amount of compensation awarded would depend on various factors such as the severity of the injuries, the financial losses incurred, and the pain and suffering endured by the victims and their families. Consideration and comparison with other court awards would also be a relevant factor in determining the quantum of compensation.

- [46] While determining the quantum of damages appropriate for the Plaintiffs in this case, the following considerations are to be taken into account as born out of the evidence on record: - $\mathbf{i}$ Severity of the personal injuries. - ii. Pain and suffering of the plaintiffs. - iii. Emotional distress and anxiety suffered. - iv. Mental anguish i.e psychological and emotional harm or trauma. - $V$ . Disability, disfigurement, physical impairment and loss of amenities. - Loss of expectation of life or overall decreased quality of life. vi. - vii. Loss of earnings. - viii. Possibility of future expenses in treatment due to recurrence of the injuries. - Future medical needs considering reviews and/or continuing need for ix. medical treatment. - Loss of earning capacity due to disability. $X$ . - Viciousness of the incident. xi. - Response by the Defendant to assist and/or support the plaintiffs and xii. denial of liability. - xiii. Inconvenience or significant disruption of the victims' daily routine, way of life or ordinary lifestyle. - Previous court decisions involving similar circumstances or wildlife xiv. attacks. - $[47]$ Fortified by the evidence on record. I find that the defendant consistently ignored and refused to provide any assistance whatsoever to the Plaintiffs in spite of their numerous requests for assistance. Furthermore, the attack from the lion left the $1^{st}$ and $2^{nd}$ Plaintiffs disfigured or scarred both physically and mentally. The incident caused the Plaintiffs severe pain. The attack took away the 3rd Plaintiff's livelihood causing him mental anguish and suffering. It is such distressing and grossly traumatizing experience the $1^{st}$ & $2^{nd}$ plaintiffs underwent when they found themselves confronted by a lion. - [48] The Plaintiffs lost income due to temporary and/or permanent disability particularly the 1st Plaintiff whose hand is permanently impaired. This gruesome experience caused deep psychological scars on the Plaintiffs minds, anxiety, and depression. The emotional toll of such an experience can be longlasting and may even require extensive therapy and counseling to overcome the trauma. The pain and suffering endured during and after a lion attack cannot be overstated. Needless to mention, the Plaintiffs suffered a diminished quality of life. The disability of the 1st Plaintiff limits his mobility, independence, and participation in everyday activities. The physical impairment also creates bearers to his overall sense of wellbeing, earning potential and happiness. - [49] I find that the Plaintiffs in the unique circumstances of this case and in view of what I have elaborated above, are entitled to a substantial sum of general damages. Counsel for the Plaintiffs prayed for a sum of Ushs $5,000,000,000/=$

(five billion Uganda Shillings only) as general damages which I find rather high in view of the economic set up of this country. Considering the facts of the present case; the plaintiffs' expectation of death upon confrontation with the deadly lion and the pain occasioned to the Plaintiffs by the gruesome encounter with it, actually the plaintiffs are considered as thin wire survivors, and all the considerations I have detailed above, I award each of the 1st and 2nd Plaintiffs a sum of Ushs 320,000,000/= (Three Hundred and Twenty Million Shillings only) for the severe pain endured under the gruesome attack of the lion. I award the $3rd$ Plaintiff general damages of Ushs 5.000,000/= (Five **Million Shillings only)** for the pain and inconvenience occasioned to him when the lion attacked and killed his livestock/ and loss of the three sheep and goat.

Special damages.

- $[50]$ The law relating to special damages is settled in the case of **Bonham Carter V** *Hyde Park Hotel Ltd (1948) 64 TLR 177* holding that the guiding principle is that special damages must be specifically pleaded and strictly proved. Though, this not always be by documentary evidence. See *Rutaama Geoffrey & Anor V* A. G & Anor CACA No 80 of 2012 at page 21. However, the case of Byekwaso *V Mohammed* [1973] *HCB* 20 enunciates that the stated position confirms that for as long as there is sufficient proof of the loss actually sustained which is either a direct consequence of the Defendant's action/omission or such a consequence as a reasonable man would have contemplated, this would suffice in place of physical and/or documentary evidence. - [51] The $1^{st}$ and $2^{nd}$ Plaintiffs adduced evidence in the form of photographs and medical reports showing the injuries sustained. The 3rd Plaintiff also adduced photographic evidence showing his livestock he lost during the lion attack. The Plaintiffs claimed special damages as follows:

| a) Medical expenses | | |-----------------------------------------------------------|--| | b) Transport expenses | | | c) Telephone calls | | | $TOTAL$ | | | | | | 2 ND PLAINTIFF: PARTICULARS OF SPECIAL DAMAGES | | | | | | (a) Medical expenses | | | (c) Telephone calls | | | $TOTAL$ | | | | | | 3 RD PLAINTIFF: PARTICULARS OF SPECIAL DAMAGES | | | (a) Loss livestock(3 sheep and a goat) | | | (b) Transport expenses, | | | (c) Telephone calls | | | TOTAL | |

## 1st PI AINTIFF. PARTICIII ARS OF SPECIAL DAMAGES

# [52] In Bonham Carter Vs Hyde Park Hotel (Supra), Court observed thus;

"Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage, it is not enough to write down the particulars, and so to speak, throw themselves at the head of the court saying 'this is what I have lost. I ask you to give me these damages'. They have to prove it."

[53] In the instant case, though the defendant did not contest the particularized special damages in cross examination, this did not relieve the plaintiffs of the duty imposed upon them to prove their special damages. Even if one is to proceed on the basis that a reasonable man would have contemplated them, the plaintiffs would still have to prove the specific financial losses they claim to have suffered. For example, the plaintiffs did not in evidence explain how and when they incurred the alleged transport and telephone expenses in addition as to how they arrived at the claimed figures. The same apply to the medical expenses. The receipt attached to the 1st plaintiff's pleadings dated $9th/4/2022$ is not backed by any evidence as regards precisely what the Ugx $95,000/$ = was paid for. As a result, the claim for special damages accordingly fails. The medical, transport and telephone expenses may in the circumstances of this case have to be implied in the awarded general damages.

### **Exemplary damages.**

- [54] In the instant case, the plaintiffs seek for the award of aggravated damages. It was held in the case of Fredrick J Zaabwe Vs Orient Bank & ors SCCA No. 4 of 2006 that aggravated damages are extra compensation to a plaintiff for injury to his feelings and dignity caused by the manner in which the defendant acted. These are meant to deter the wrong doer from repeating the act or for wounded feelings of the plaintiff. They result from the wanton disregard of the plaintiff's rights by the defendant. - In this case, I have considered award of aggravated damages because there are [55] aggravating factors that worsen the harm suffered by the victims. Aggravated damages are awarded to compensate the plaintiffs for the additional distress caused by the defendant's inconsiderate or high-handed conduct towards the Plaintiffs in the aftermath of the attack. Given the Defendant's gross negligence and refusal to assist the Plaintiffs despite their distressful plight, exemplary damages are warranted as a deterrent against future misconduct. Drawing on legal precedents such as Obongo and another vs. Municipal Council of Kisumu [1971] 1 EA 91 per Spry VP at page 94, the Plaintiffs have made out a case for a substantial but reasonable award to penalize the Defendant's behaviour and prevent similar instances in the future. The Plaintiffs prayed for a sum of Ushs 500,000,000/= (five hundred million Shillings only) which I find high. I consider an award of a sum of Ushs 80,000,000/= (Eighty Million Shillings only) as reasonable exemplary damages to serve as a future deterrence to the Defendant for repeated misconduct. I have considered this enhanced quantum of compensation for lion attacks to send a strong message

about the seriousness of such incident and to serve as a deterrent against future attacks. Nobody should find himself or herself under a similar gruesome attack by wildlife let alone a lion! The Defendant has to be on a constant look out for stray ferocious animals under their care by way of monitoring and tracking them in order to ensure no future incidents of this nature where ferocious wildlife escape to the communities to cause havoc as a way to protect and save human life and property. In the view of this court, the award of exemplary damages in this matter reinforces the responsibility of authorities and wildlife agencies to implement strict measures to prevent human-wildlife conflicts and protect vulnerable communities. It is hoped the aggravated damages awarded well serve to reflect the egregious nature of the defendant's conduct and the increased harm suffered by the plaintiffs as a result.

### Costs

[56] In accordance with Section 27(2) of the Civil Procedure Act, costs are awarded at the court's discretion and typically follow the event of the case. Considering the Plaintiffs successful parties, the costs of the suit are awarded to the Plaintiffs.

### **Interest**

- [57] The Plaintiffs are awarded interest on general and exemplary damages at a rate of 24% per annum from the date of judgment until full payment. - [58] In conclusion, judgment is entered in favour of the plaintiffs for the following declarations and orders: - 1. The defendant was negligent when it failed to contain a lion in its conservation area leading to the attack and the resulting personal serious injuries of the $1^{st}$ & $2^{nd}$ plaintiffs and loss of livestock of the $3^{rd}$ plaintiff. - 2. (a) General damages of Ugx 320,000,000/= for each, 1st and 2nd plaintiffs and Ugx 5,000,000/= for the $3rd$ plaintiff. - b) Exemplary damages of $Ugx$ 80,000,000/=. - 3. General and exemplary damages to carry interest of **24% p.a** from the date of judgment till full payment. - 4. Costs of the suit are awarded to the plaintiffs.

### Dated at Hoima this 12th day of July, 2024.

**Byaruhanga Jesse Rugyema** IUDGE.