Sambo v Electricity Supply Corporation of Malawi (Civil Cause 1161 of 2000) [2002] MWHC 73 (19 September 2002)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1161 OF 2000 BETWEEN: T. SAMBO -and- ELECTRICITY SUPPLY CORPORATION OF “MALAWI CORAM: HON. JUSTICE A. C. CHIPETA Tembenu, of Counsel for the Plaintiff Nkuna, of Counsel for the Defendant Kaundama/Matekenya (Mrs), Official Interpreters JUDGMENT Although the plaintiff's amended Statement of Claim refers to 18th October, 1994 as the material date, all evidence in this case instead points to 18th September, 1994. At dawn on that day around 4.00 a.m. or thereabouts, the plaintiff’s house, at Mangochi Boma, was on fire and a number of his personal belongings, including furniture, a fridge, and some cutlery, in value estimated by him at K300,000.00, were consumed by the fire. The plaintiff has in this case sued the defendant for recovery of damages for this loss or destruction of his goods. He asserts through his statement of claim that the fire that burnt his house and goods resulted from electricity sparks on ¢ \ r = o by \» X C c kS = W =< i the defendant’s electricity cables due to negligent maintenance of those cables by the defendant. In particularizing the negligence alleged the plaintiff has averred that the defendant allowed trees to overgrow near its cables and that such trees, which the defendant failed to prune, repeatedly fell on the electricity lines, that immediately before the fire the defendant allowed electricity surges to exist on its cables which caused sparks, that the defendant failed to do proper maintenance work on the cables near the plaintiff’s house whenever he reported faults on it and that the defendant also permitted uninsulated electricity cables, which caused sparks that eventually set the plaintiff house on fire, to exist. In addition to the damages claimed, the plaintiff seeks to recover the costs of the action. On its part the defendant concedes that the plaintiff’s house indeed caught fire, but completely denies that the said fire was caused by electricity sparks. The defendant further denies at all being negligent as alleged. It goes on to aver that even if it was negligent, a point it continues to deny, such negligence did not cause the fire that burnt the plaintiff’s house. Finally the defendant denies liability for the loss and damage claimed herein. in evidence that it The undisputed facts of this case are that Mr T. Sambo is a Telephone Technician who at the material time was based at the Mangochi Telephone Exchange as Officer-in-Charge and he was residing in a house at Mangochi Boma. At the time the fire herein broke out he and his entire family were fast asleep. It is his wife who first discovered that is something was amiss. Actually in the words of the said wife, Mrs Jane Sambo, who was PWII, she had awaken in order to answer a call of nature when she smelt something burning. It is then she said she discovered the kitchen ceiling burning when she went to check and that she then rushed to awaken her husband. At the end of it all the Storeroom, which was adjacent to the kitchen was completely devastated and all the property kept in there including bags of maize, chickens and chicken mash etc. was completely destroyed. The kitchen itself was extensively damaged including the fridge kept therein. The fire extended a little to the sitting room, which was also next to the kitchen, but with the help of the police and of neighbours, it was put out before eating up too much of that room. Thus some properties from the sitting room and from the other rooms of the house that were not touched by the fire were rescued from perishing. The evidence given regarding how the fire was discovered I must say has not come to this court in consistent fashion. Two versions have emerged and they are not consonant with each other. The viva voce evidence of the plaintiff which is in line with exhibit “P1”, a statement he wrote for his lawyers on 28th April, 2000, more than five years after the incident, is to the effect that after being awakened by his wife around 4.00 a.m. on the material night he proceeded to the kitchen where he saw the ceiling around the chimney furiously burning and that at that very moment the ceiling collapsed to the ground. A letter this same plaintiff tendered as exhibit “P2”, however, which he wrote to the defendant on 5th October, 1994, within three weeks of the incident, makes no mention of the plaintiff himself visiting the kitchen as described above. In this letter the plaintiff indicated that it was his wife who went to the kitchen and that when she opened the door leading thereto she saw that “the whole ceiling was ablaze and the cupboard and other items were burning.” This in a way tallies with the evidence of the wife, whose testimony was that she was the one who discovered the fire in the kitchen. It was also her evidence that when she then went to awaken her husband and the rest of the family, her husband rushed out to drive their car further away from the house to save it from catching the fire. Now whatever the true version of events really is, what is clear to me is that this incident took the plaintiff and his family completely by surprise. It is also clear that whoever opened the kitchen door did not dare beyond that door and did not thus cross the kitchen floor to reach the Storeroom and check the situation there. It cannot thus be categorically asserted or denied by the plaintiff or his wife whether at the point fire was so discovered in the kitchen, the Storeroom was or was not already also under fire as neither of them checked that room at that time. Since all the inhabitants of this house only awoke from sleep at a time when the fire was already fierce, I think in all sincerity none of them can pretend to tell with any degree of precision where this fire started from and how really it started. I apprehend that whilst in the state of sleep none of them was in a position to observe the sparks they allege set this house alight unless it was by way of dreaming. Equally with no immediate check on the Storeroom, which ended up being the most devastated room in this fire, the plaintiff’s witnesses cannot be so positive that the only fire that was on at the time I therefore they awoke was the one observed in the kitchen. believe, in the circumstances, that what the plaintiff and his wife told me on the origins of this fire are merely assumptions. The question therefore is whether their said assumptions are in any way justified in the circumstances of the case. In The case before me, I remind myself, is a civil one. such cases the requirement of the law is that he who asserts must prove. In the present case the assertion comes from the If I am to find for him therefore he needs to satisfy me plaintiff. on a balance of probabilities that his complaint against the Countless Malawian case authorities defendant is justified. have acknowledged that this rule of procedure and evidence represents the correct standard as was well spelt out in the famous case of Miller -vs- Minister of Pensions (1947)2 All E. R. 372 which has virtually been adopted in wholesale fashion here. I have already pointed out that owing to the fact that PW1 and PWII were asleep at the time the fire herein broke out they have no direct evidence on how and when exactly the fire started. Cases however need not always be proved by direct evidence. I need therefore to examine what other evidence the plaintiff’s side has adduced in the matter and see whether it lends adequate weight to the allegations raised in this matter. It was the additional evidence of the plaintiff and his wife that sometime prior to this incident a tree fell on the service wire (alias mainswire) that brings electricity to the house herein. According to the husband this incident caused this wire merely to sag low, but according to the wife this caused Both were uniform, however, that the said wire to get cut. when the defendant’s employees came to effect repairs they They wrapped the wire ended up doing a temporary job. around the chimney and restored electricity to the house. They then said they were rushing to Namwera for other work, and They that they would return to do a more permancnt job. never came back as promised and by the time the incident giving rise to this case occurred some six months or so had already elapsed since the carrying out of this temporary job. It appears to be the belief of the plaintiff and his wife that with wind blowing over the months, the wire wrapped around their chimney was scratching against the chimney wall and that its insulation was therefore being eroded. They believe thus that with the insulation gone, with continuing winds, the exposed wires were liable to emit sparks which must on the material night have started a fire on the roof. The point these witnesses jointly emphasized thus was that when they discovered this fire it was mainly concentrated on the ceiling near the chimney and that this is where the fire must have started from. DW1, was Mr John odges Nyambi, the man who at the material time was the Officer -in-Charge of the defendant’s office in Mangochi. This witness indicated that his house was located only some 300 metres away from the plaintiff’s house. He said that in fact he was one of the neighbours that rushed to the plaintiff’s house and assisted with the rescue activities there during the night of the fire. Although this is not the man who actually carried out the repairs described as temporary at the plaintiff’s house, in his position as head of the Station, he routinely every morning went through reports of faults attended by his staff and he was thereby conversant with the work done at the plaintiff’s house. According to this witness the tree that fell on the service wire herein caused the D-Iron, otherwise also known as the D- Shackle, which secures the service line to stretch at a certain level as it brings electricity to the house, to be dislodged from the chimney against which it had been fixed by bolts. The service wire, he said, thus ended up sagging lower than usual but that it did not actually get cut. After removal of the tree, in the absence of bolts to properly refix this D-Iron again as before, galvanized wire was used to affix the same again to the chimney and that it is this galvanized wire and not the service wire that was wrapped around the chimney. Although admitting that this was indeed a temporary job, the witness described this manner of securing the D-Iron as the best that could have been done in the circumstances before electricity could be restored to the house and that it was good enough to last for years. In fact it was the further evidence of full Technological Certificate in this witness, who has a Electrical Engineering and some twenty years of experience with ESCOM work, that the day after this fire he observed that the service wire, the wire from the roof to the cut-out, and even the metre board were all intact. It was his stand in fact that if the service wire had burnt it would have immediately blown the fuse at the transformer it was fed from and that this would have had the immediate effect of cutting out power for all the other houses fed on the same line, which, he said, was not the case. The witness thus seriously disputed the allegation that this fire started from sparks from the service wire on the roof of this house. He equally disputed the allegation that the fire in issue resulted from the defendant’s negligence. DWII was Stanford Chamama, the defendant’s Electrical Installations Inspector who inspected the burnt house herein ten days after the fire. He too observed that the mains wire (i.e. the one from the nearest electric pole to the house), and the wire from the roof to the cut-out in the meter board, as well as the meter and the cut-out itself were all intact. The fire, the witness said, had mainly consumed the western part of the house comprising mainly of the Kitchen and the Storeroom and that the Mains wire having been secured from an eastern pole and anchored to the eastern side of the chimney was not at all affected by the fire. The witness further said that at the time of this inspection on 28th September, 1994 he saw the D-Iron still anchored to the chimney by a Stay wire wrapped around the said chimney. He confirmed that the service (or Mains) wire was not itself wrapped around the chimney. I have with lucid patience gone through and evaluated the evidence on record in the light of all the averments in the It appears to me, in consequence, that pleadings of the case. quite some measure of margin exists between the evidence adduced and the allegations raised in the case. The bold assertion that the fire herein was caused by electricity sparks on the defendant’s cables, as seen, is not borne out by the evidence because as the fire started whilst the plaintiff and his witness were fast asleep, they are only assuming and cannot prove existence of the sparks they allege started the fire that night. Further as turns out to be the case the allegation that the defendant neglected its pruning exercises and that as a result overgrown trees repeatedly fell on the electricity wires near the plaintiff’s house is also not quite true. As far as the evidence goes only one tree and only once for that matter fell on the Mains line to the plaintiff’s house and this was some six fire. months or thereabouts before Furthermore as became clear as the evidence unfolded, the plaintiff and his wife did not know for a fact, they merely incident of this the assumed, that the wire wrapped around their house’s chimney was the service wire. They equally did not know it as a fact, and equally just assumed, that this wire’s insulation was eaten up. Beyond this they as well visualized in their minds the imaginary exposed wires emitting sparks to the roof of their house and starting the fire but did not see this for a fact. Weighing the evidence as adduced on a content scale it seems to me that the plaintiff’s case is more based on a theory propounded from the head that this fire started in a certain pre-determined way than on concrete fact that indeed it started that way. The plaintiff, it is apparent, has built up his case against the defendant from linking up a chain of assumptions which are not well backed up by fact. Given that I quite appreciate the predicament the plaintiff and his family found themselves in after awaking from sleep only to discover an advanced fire burning their house, I find their theory as to how this fire really started a little too extreme. fire. As against these imaginations I in contrast have the solid evidence of defence witnesses who knew of and physically saw These the material electrical installations after the witnesses, DW1 and DWII, appeared to me to be quite sincere [ saw no flair on their part to beef up their witnesses. I accept these testimony with imagination or assumption. witnesses’ evidence that from what they personally saw it is not the Mains wire that was wrapped around the chimney of the I also plaintiff’'s house but rather the galvanized or Stay wire. accept as true their evidence that these two wires along with the wire leading to the cut-out in the meter board remained It is thus my view that if indeed the unscathed after the fire. service wire fire herein had started from sparks on this consequent on the manner in which it was affixed to the house several months before, there would undoubtedly have been tell tale signs on it. In the circumstances [ am not convinced to the requisite standard that the plaintiff has proved the defendant’s liability in the matter. Now while the fire remains a puzzle even to me I cannot say, on the evidence available that the plaintiff has shown me that it was caused by the defendant or by the defendant’s fault. I in the result dismiss the plaintiff’s claim with costs. Pronounced in open Court this 19th day of September, 2002 at Blantyre.