CIVIL APPEAL NO 120 OF 2021 FAUSTINE CONSTANTINE MNGANYA 3 OTHERS VS RASHID JAFARI 2 OTHERS

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM ( CORAM: MWARIJA. 3,A.. FIKIRINI. 3.A. And MLACHA. J.A.I CIVIL APPEAL NO. 120 OF 2021 FAUSTINE CONSTANTINE MNG'ANYA................................ 1st APPELLANT ULIRICK FAUSTINE MNG'ANYA (A person of unsound mind by his natural Guardian FAUSTINE CONSTANTINE MNG'ANYA his next friend) 2nd APPELLANT FAUSTINE CONSTANTINE MNG'ANYA (Late a minor by FAUSTINE MNG'ANYA but now has attained the age of Majority).............................................3rd APPELLANT AGNESS FAUSTINE MNG'ANYA (Late a minor By FAUSTINE MNG'ANYA but now having attained age of majority)...................................................4th APPELLANT

VERSUS RASHID 3AFARI..................... ............. ........................ ....1st RESPONDENT JEETENDRA PRABHUDAS ZAVERCHAN........................... 2nd RESPONDENT MAXINSURE (TANZANIA) LIMITED.................................3rd RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Dar es Salaam District Registry at Dar es Salaam) (Mutunai, 3.) dated 22nd day of June, 2018 in Civil Case No. 9 of 2014

JUDGMENT OF THE COURT 8th & 23rd July, 2024 FIKIRINI. J.A.: Faustine Constantine Mng'anya’s life took a tragic turn after his wife, Catherine Constantine Mng'anya, lost her life in a road accident on 8th March, 2013. The incident occurred when Rashid Jafari, driving i a vehicle in the course of his employment with the 2nd respondent, failed to stop at a zebra crossing with traffic lights along Bibi Titi Mohamed road, Dar es Salaam. Rashid Jafari was charged with careless driving on 27th May, 2013, in Traffic Case No. 213 of 2013 at the Ilala District Court. He pleaded guilty, was convicted, and fined TZS. 50,000/=. Subsequently, the 1st appellant sought compensation from the 3rd respondent (vide exhibit P4) for the loss caused by the accident. The 3rd respondent initially offered TZS. 4,700,000/= based on assessors' advice but later reducing it to TZS. 2,000,000/= as condolences. The 1st appellant declined this offer citing expenses incurred for the deceased’s burial (exhibited in exhibit P6), his temporary employment status post-retirement, and the financial dependence othe deceased's income. Additionally, the 2nd appellant, who suffered permanent mental health issues, required continued care, a role previously fulfilled by the deceased. Despite the appellant's pleas, the 3rd respondent refused to reconsider the compensation offer. Disagreement over the compensation offered by

the 3rd respondent, led the 1st appellant to sue the 2nd respondent for being vicarious liable due to the 1st respondent's negligent and careless driving while in employment, and the 3rd respondent under the Third Party Compulsory Motor Insurance Scheme. In the filed Civil Case No. 9 of 2014 the 1st appellant was claiming against all the respondents jointly and severally a total of TZS. 605, 000,000/= for himself and on behalf of the other three appellants. Despite the 1st and 2nd respondents failing to file written statements or appear, the 3rd respondent filed a written statement of defence and appeared in court. The case proceeded ex parte against them. Witness testimonies from Faustine Constantine Mng'anya (PW1), Eliondo Privatus Mtabi (PW2), Deukadia Aquiline Kimario (PW3), and defence witness Magnus Martin Mgwembe (DW1) established the circumstances of the deceased's death without dispute. PW1 testified that Catherine Constantine Mng'anya was struck by a motor vehicle operated by the 1st respondent while crossing the street, resulting in her death at Muhimbili National Hospital on 12th March, 2013. She was laid to rest in Rombo. According to the evidence, at the time of the 3 accident, the deceased was self-employed, running a shop selling African garments (Vitenge) and earning at least TZS. 2,000,000/= per month. PW1 described the deceased as a wife and mother of

five children, including one with permanent mental health issues, and two children born out of wedlock but residing with the couple. PW1 considered three (3) out of his children depended on the deceased, who had a shop and was giving hand in PW2's catering business. PW2 and PW3 corroborated the deceased's financial support for her family, with PW2 noting additional income the deceased was earning from assisting PW2 in her catering business, estimated at TZS. 300,000/= per month. The trial Judge based on the evidence and all the documents received which included exhibits P1-P6, D1 and D2, she concluded that the plaintiffs had failed to prove their claim consequently dismissed the suit with costs to the 3rd respondent. Dissatisfied, the appellants preferred the present appeal having six (6) grounds of appeal namely: 1. The learned Judge erred in law and in fact by failin g to make finding that exhibit P3 reveal that the 1st defendant caused the sa id accident. She should have analyzed exhibits P3, D1 and D2 and the evidence provided by PW1 and come up with a finding that the 1st defendant caused the accident.

2. The learned Judge erred in law and in fa ct by failin g to appreciate the fa ct that there was su fficien t evidence fo r holding th at 1st defendant was an em ployee o f the 2nd defendant thus 2nd defendant is vicarious liab le fo r the negligence o f the 1st defendant 3. The learned Judge erred in law and in fa ct in failin g to hold that accident as it occurred on the zebra crossing constitutes negligence on the p a rt o f the 1st defendant Thus, constitute no w rongful a ct on the p a rt o f the 1st defendant 4. The learned Judge erred in law and in fa ct in holding that re lie f claim ed is in nature o f sp ecific dam ages and thus defendants are not liab le to pay com pensation to the plain tiffs.

5. The learned Judge erred in law and in fa ct in holding that conviction o f the 1st defendant in the traffic case im putes negligence.

6. The learned Judge erred in law and in fa ct in im posing standard o f p ro o f higher than that required in c iv il cases on the appellants. The appellants, represented by Mr. Roman Selasini Lamwai, learned Counsel, filed written submissions, while the 3rd respondent did not file any. However, on the hearing date, Mr. Ngassa Ganja Mboje, also learned Counsel, appeared and argued on behalf of the 3rd respondent. Mr. Lamwai, in a brief address to the Court, adopted the written submissions filed, considering them exhaustive. Mr. Mboje, on his part, supported the High Court judgment as correct, asserting that the appellants had failed to meet the burden of proof required under sections 110 and 111 of the Evidence Act. He contested the claim of TZS. 605,000,000/=, arguing that the 3rd and 4th appellants, identified as minors, had not appeared in court nor was there any document proving their status. Furthermore, Mr. Mboje claimed they were not the deceased's biological children but born out of wedlock to the 1st appellant, a fact admitted on page 101 of the record of appeal. He pointed out that PW2's evidence on pages 213­ 214 did not acknowledge them. Regarding the deceased's children, he asserted they were aged 18, 19, and 20. Mr. Mboje also contested the alleged mental health issues of the 2nd appellant, citing lack of medical reports submitted to prove this disability. He

further challenged details such as the deceased's name, age, date of death, and her role as the family breadwinner. He also raised discrepancies in the name of the driver involved in the accident, comparing "Rajabu Jafari" in exhibit P3 - PF 90 with "Rashid Jafari" mentioned in the pleadings. On the issue of damages, Mr. Mboje emphasized that specific damages must be proved, which he argued was lacking in the present case, except for TZS. 5,000,000/= supported by exhibit P6. He contended that, the claim of TZS. 100,000,000/= for each of the three dependents, 2nd, 3rd, and 4th appellants, lacked substantiation. Mr. Mboje acknowledged liability, noting that the 3rd respondent had already paid TZS. 2,000,000/= to the 1st appellant based on the Assessors' report in exhibit D l, although the initial amount was TZS. 4,700,000/=. He explained that the discrepancy led the 1st appellant to seek judicial intervention despite signing the discharge voucher, as he deemed the 45-day period for payment under section 131 (1) of the Insurance Act, Cap. 394 R.E. 2017, too long. Since the 3rd respondent seemed not to contest liability, the Court wanted to know what was then an issue? Mr. Mboje while admitting liability, he clarified to the Court, that the 3rd respondent was contesting the total amount claimed, which is contrary to the agreed payment terms as shown in exhibit D2. Mr. Lamwai

reiterated the appellants' reliance on the written submissions already filed. He addressed Mr. Mboje's arguments on the amount claimed, disputing that TZS. 605,000,000/= represented specific damages, distinguishing it from TZS. 5,000,000/= itemized in paragraph 12 (i) of the amended plaint reflected on page 36 of the record of appeal. He clarified that the remaining amount constituted damages to be determined at the court's discretion. Further in his response, Mr. Lamwai dismissed Mr. Mboje's concern raised on various issues including deceased's name, age, date of death, and the name of the driver who caused the accident. He however, left the issue of who were the dependents to the Court, but urged that even though there was no proof that they were in school, their ages could be a factor worth consideration. Finally, he beseeched the Court to consider that the claim stemmed from an accident which took away the deceased's life and invited it to undertake and re-evaluate the evidence, it being the first appellate Court sitting in the form of rehearing and accordingly make its own findings. Having meticulously reviewed the records, grounds of appeal, written submissions by Mr. Lamwai, and oral arguments from both Counsel for the parties, we deem it crucial to outline the following undisputed facts before delving into the core issue at hand: firstly, that the deceased was the 1st

appellant's wife and the biological mother of the 2nd appellant, along with two other children not involved in this appeal. Secondly, the deceased tragically passed away on 12th March, 2013, due to injuries sustained from a traffic accident at the traffic lights along Bibi Titi Mohamed road, as evidenced by exhibit P3 (PF90). The 1st respondent was charged in Traffic Case No. 213 of 2013 for causing death through careless driving, of a motor vehicle on public road c/s 41, 27 (1) (a) and 63 (2) (b) of the Road Traffic Act, R.E. 2002 to which he pleaded guilty and was fined TZS. 50,000/=. The 1st respondent paid the fine in full on May 27, 2013, at the Ilala District Court. Thirdly, at the time of the accident, the 1st respondent was an employee of the 2nd respondent, and the 3rd respondent insured the motor vehicle involved in the accident, as evidenced by exhibit D1 on page 242 of the record of appeal. Fourthly, the 3rd respondent did not contest liability and initially offered compensation of TZS. 4,700,000/=, later reduced to TZS. 2.000.000/=, which was disputed by the 1st appellant, hence the Civil Case No,9 of 2014. With the undisputed facts above, our focus now narrows to a single issue of: whether the appellants are entitled to the compensation sought in the amended plaint amounting to TZS. 605.000.000/=. Damages serve as monetary compensation awarded by the court to

redress harm, loss, or injury suffered by the plaintiff due to the defendant's tortious act or breach of contract. As articulated by Justice Yaw Appau in his paper presented at the Judicial Training Institute on the Assessment of Damages, this principle underscores the basis for assessing damages in legal disputes. In our jurisdiction, the most common and often sought reliefs are general and specific damages. The Court in Tanzania - China Friendship Textile Co. Ltd (supra), distinguished between the two by illustrating that specific damages, are the reliefs requiring strict proof, whereas general damages, are discretionary upon the court, considering the whole circumstances of the case. 10 This Court has consistently upheld the above principles in various decisions, including Lalata v. Gibson Mwasota [1980] T.L.R. 390, Zuberi Augustino v. Anicet Mugabe [1992] T.L.R. 137, Bamprass Star Service Station v. Fatuma Mwale [2000] T.L.R 390, and Tanzania - China Friendship Textile Co. Ltd v. Our Lady of the Usambara Ltd, [2006] T.L.R. 76, among others, which dealt with specific damages. In Zuberi Augustino (supra), the Court emphasized: "It is trite Jaw that speciai dam ages m ust be sp ecifically pleaded and proved . " Applying these principles to the present appeal, it is clear that specific damages were pleaded in paragraph 12 (i) of the amended plaint. While not exhaustive in

detailing every expense, the 1st appellant tendered receipts admitted as exhibit P6 collectively demonstrating actual expenses. These included costs such as hiring a motor vehicle to transport the deceased's body from Dar es Salaam to Rombo and back, purchasing the coffin and a cross, and an air ticket for travel from Mwanza (where he was working at the time of the accident) to Dar es Salaam. Other costs for food, drinks, chairs and ii music during the funeral service were established, while others were not such as TZS. 1,800,000 obtained as a loans. For example: in the assessor's report - exhibit D2, there was a suggestion that the 2nd appellant need be provided with a care due to his mental disability at the rate of TZS. 50,000/= per month for twelve (12) months. In our considered view, had the trial Judge directed herself to this uncontroverted evidence which related to funeral expenses incurred, pleaded and substantiated, would have awarded that amount. From the re-evaluation, we find the 1st appellant is entitled to special damages amounting to TZS. 5,000,000/= (Shillings Five Million Only), representing the proven actual expenses as per exhibit P6. Unlike specific damages, general damages are awarded at the discretion of the court. This discretion must, however, be exercised judiciously, based on thoroughly evaluated and reasoned evidence available on record. As

articulated in Anthony Ngoo & Davis Anthony Ngoo v. Kitinda Kimaro, [2015] TZCA 269 and Tanzania Saruji Cooperation v. African Marble Company Ltd., [2004] T .LR 155, general damages are presumed to be direct, natural, or probable consequences of the act complained of, even if the plaintiffs conduct may have contributed to the damages. Examining this portion in the light of the principle of awarding general damages, our first stop is at the appellants' claim in paragraphs 13 and 14 of the amended plaint, with paragraph 13 reproduced below for reference: "13. That as a resu lt o f the death, the 1st appellant has lo st the assistance o f h is w ife in raising th eir ch ild re n o n e o f whom is m entally retarded and requires full-tim e supervision. He has also lo st the m atrim onial support he would have enjoyed fo r the rem ainder o f h is life, p articu larly now that he is retired from pu b lic service. The 1st appellant subm its th at he is en titled to com pensation in the sum o f TZS. 300,000,000/=. Hand in hand with the above is the claim stipulated in paragraph 14, whereby the 2nd, 3rd and 4th appellants are each claiming TZS. 100,000,000/= in total TZS. 300,000,000/=. It is beyond doubt that the deceased's death resulted solely from the careless driving of the 1st respondent, who admitted guilt, 13 was convicted, and paid the fine. This unchallenged

evidence, supported by exhibits P3 collectively, strengthens the appellants' claim under tortious liability. Pursuant to section 60 of the Evidence Act, these facts require no further proof and can too be used in these proceedings. The 3rd respondent, acknowledging responsibility as the insurer of the vehicle involved in the accident, contests only the compensation amount, of which the 1st appellant seeks TZS. 300,000,000 for himself, and TZS. 100,000,000 each for the other appellants. From the above outline, our task now is to determine whether each of the appellant deserves compensation in the form of general damages to the extent pleaded. Regarding the claim under paragraph 14 of the amended plaint, there must be a reliable basis for the Court to consider granting the claimed quantum. Exhibit D2, the Assessors' report found on pages 246-252 of the record of appeal, suggested that the 2nd appellant is mentally disabled and requires assistance, recommending hiring a maid at TZS. 50,000/= per month for twelve (12) months. However, there is no medical report supporting the conclusion that he was mentally disabled requiring full time care nor was there any document showing his age or if he was in school or college. Certainly, that would have assisted the Court to assess the dependency status claimed and augmented by PW1, PW2 and PW3's account. Given the principle that the court's

discretion must be exercised judiciously based on thoroughly evaluated evidence, which is lacking in this instance, we find it impossible to award TZS. 100,000,000/= claimed as general damages. Turning to the 3rd and 4th appellants, it is crucial to note that they were not the deceased's biological children, and there is no evidenceproving they were her dependents or lived with her. Although PW2 mentioned on page 212 of the record of appeal that there were 2 to 3 other children besides the deceased's three children, it was not specified if the 3rd and 4th appellants were among them. Similarly, PW3 stated on page 213 that there were other children from relatives but did not specify if the 3rd and 4th appellants were included. Furthermore, neither the 3rd nor the 4th appellants appeared in court to testify, and no reasons were given for their absence. After considering the evidence on record and all 15 circumstances in this appeal, we find insufficient proof that the 3rd and 4th appellants were dependents of the deceased who suffered materially and mentally due to the 1st respondent's negligence. Therefore, their compensation claim fails. While acknowledging that no amount of general damages can fully compensate for such losses, we recognize the purpose of insurance policies is to indemnify rather than provide windfall benefits to those affected by insured acts, as held in

Reliance Insurance Company (T) Ltd & 2 Others v. Festo Mgomapayo, (Civil Appeal No. 23 of 2019) [2019] TZCA 323 (2nd October, 2019; TANZLII). Employing the principles to the circumstances in the present appeal, the 1st appellant undoubtedly suffered immense loss of love, affection, mental anguish, and the absence of his wife's management during the time he needed her most. The 1st appellant had just retired from employment, the deceased absence from home must have affected him. The deceased's income from self-employment, though not substantial, was nevertheless, significant for the family upkeep, which they no longer enjoy. Considering these factors and in the interest of justice, we award the 1st appellant TZS. 50,000,000/= 16 (Shillings Fifty Million) to be jointly and severally paid by the respondents, with interest at the court's rate of 7% from the date of this judgment until final payment, along with costs of the suit. In conclusion, the appeal is allowed in part as indicated in this judgment with costs. DATED at DAR ES SALAAM this 22nd day of July, 2024. A. G. MWARIJA

JUSTICE OF APPEAL P. S. FIKIRINI

JUSTICE OF APPEAL L. M. MLACHA

JUSTICE OF APPEAL The Judgment delivered this 23rd day of July, 2024 in the presence of the Mr. Ngassa Ganja Mboje, learned counsel for the 3rd respondent also holding brief for Mr. Roman Selasini Lamwai, learned counsel for the appellants and in the absence of the 1st and 2nd respondents, is hereby certified as a true copy of the original.

0. H. KINGWELE

DEPUTY REGISTRAR

COURT OF APPEAL 17