abdallah shamte matimbwa vs utete urban water supply authority uteuwsa 2017 tzhc 2198 10 february 2017

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT PAR ES SALAAM (ORIGINAL JURISDICTION) CIVIL CASE NO. 84 OF 2015 ABDALLAH SHAMTE MATIMBWA.................................. PLAINTIFF VERSUS UTETE URBAN WATER SUPPLY AUTHORITY (UTEUWSA).......................................... DEFENDANT Date of Last Order: 15/12/2016 Date of Judgment: 10/02/2017 JUDGMENT FELESHI. J.: The plaintiff sues the defendant over negligence occasioned by servants of the defendant in not refilling a hole dug for the purposes of supplying water to a resident called Mama Mwajabu Mchuchuli for about 21 days from when it was dug which due to water leakage, resulted into the hole filled up with water rendering detection and or location of the hole by passersby and animals uneasy. As a result of unfilled hole, a little child named Fridaus Abdallah Matimbwa drowned in the trench whilst full of water leading to her death as a result of such negligence. The plaintiff thus sues the defendant for compensation at Tshs. 155,000,000/= for loss of life of the child and expected income, damages from trauma and psychological torture to the tune of Tshs. 20,000,000/=, burial services at Tshs. 15,000,000/=, general damages, costs of the suit and any other relief(s) as the Court deems just to grant. Page 1 of 9 This Court framed and shared to parties the following two issues:- 1. Whether there was contributory negligence on part of the defendant that resulted into death of Fridaus Abdallah Matimbwa. 2. What reliefs are the parties entitled to. To establish his claims, the plaintiff paraded four witnesses that is, himself as PW1, PW2 Issa Ngosho, PW3 Dr. Didas Patrick Asenga and PW4 Ex. D 7738 D/Cpl Deus Adolf Sikanda. On her side, the defendant had three witnesses that is, DW1 Titus Sosola, DW2 Mwajabu Mohamed and DW3 Fadhili Abdallah Kibopo. The defendant engaged services of Kassidi & Co. Advocates while the plaintiff had legal services of Crax Law Partners. On his part, PW1 testified that, on 08/12/2014, his child Fridaus Abdallah Matimbwa born on 02/03/2013 fell into a deep trench of water dug by Utete Urban water technicians for water tape connection purposes about ten paces along the border of PWl's plot. The trench was excavated within residential houses and was about six feet deep. Medical examination revealed that the cause of death was due to drowning. It was PWl's further testimony that, he did not know exactly who and or under whose instructions the water trench was excavated but it was left uncovered for about three (3) weeks. He added that, he did not have proof that he spent Tshs. 15,000,000/= being the incurred burial expenses. PW1 further testified that he and his wife were not negligent causing death of the deceased Fridaus Abdallah Matimbwa, rather, the defendant. PW2 on his part added that, the trench was dug by one Baba Paul under instructions of Kibopo (the defendant's employee) acting for the Page 2 of 9 defendant. They discovered the deceased's body floating in the water trench whereas no weapons were found around the water trench. Another testimony was by PW3 who testified that, his preliminary investigation to the deceased's body revealed that there was froth discharge from the deceased's mouth & nostrils. Besides, further medical examination revealed cause of death to be drowning inside water. PW4 testified that, the incident occurred at a junction which was a place where women went to fetch water and wash clothes. In defence, DW1 who is the manager of Utete Urban Water Authority testified that, their involvement in the matter was to connect water to their client Mwajabu Mchuchuli in which they supplied water to their satisfaction. DW1 denied to have dug a water trench and left it uncovered. He added, the water trench was dug by the client, not by or under the defendant's instructions. Additionally, the water drainage was about two (2) feet deep. DW1 further testified that the client paid for water connection on 21/11/2014 whereas by 27/11/2014 the water connection and supply was through. It was his testimony that all water leakages are reported in their office and are recorded in complainant's forms and none other than the defendant's technicians are allowed to attend water leakages. Besides, no point of time Mwajabu Mchuchuli reported to them any complaint. DW2 on her part testified that, on 26/11/2014 she applied to Utete Urban Water Authority for water connection service. She added, Kibopo who is a technician employed one Baba Paul to dig the trench. It was DW2 Page 3 of 9 who paid the said Baba Paul who is not employed by the defendant adding that it was her who was supposed and in fact paid for the trench costs. Moreover, DW3, a plumber employed by the defendant testified that, he knows one Mwajabu Mohamed Mchuchuli as their customer. In November, 2014, he was assigned duty to establish length of her intended water pipe. After water supply and connection to the client, he witnessed Salum Kassim Minge @ Baba Paul covering the water pipe trench which was 2 feet deep and IV 2 feet wide in which everything was completed by 27/11/2014. It was his further testimony that, he did not know whether there was water leakage at the material water junction. He added that, their work in connecting Mwajabu's water pipe was 100% perfect. In final submission, the defendant's counsel submitted that, the plaintiff failed to prove that there was negligence on part of the defendant. Moreover, the plaint does not state the particulars of the alleged negligence. He stressed that, the defendant had and maintains duty to repair water leakages upon realization either by the defendant's officers or upon notification by a client or any other person. It was also submitted that, the deceased's mother contributed to the death of her child through her conduct to wash clothes in a water leakage point also in leaving her at the scene when she left to hang up clothes. The defendant's counsel urged for the suit to be dismissed for failure to prove the case generally and specifically to the raised specific damages. On his part, the plaintiff's counsel submitted that, the defendant was required to inspect properly the work and test leakage before handling over to the client thus contributing to death of the child. Besides, the leakage stayed for many ours and in a residential area. It is from the above the plaintiff urges for grant of the prayed reliefs per the plaint. Having considered the evidence on record, the following are the deliberations of this Court in disposal. Regarding the first issue as to whether there was contributory negligence on part of the defendant that resulted into the death of one Fridaus Abdallah Matimbwa, the evidence on record establishes that by 27/11/2014, the defendant, through her technicians finalized water connection to one Mwajabu Mchuchuli. There is no dispute whatsoever that it was the defendant who connected the said water to Mwajabu Mchuchuli. The immediately question is whether the said water connection was properly attended. In answering this question, evidence was mounted in Court to the effect that: one, it was at the very junction where the defendant connected the said water to Mwajabu Mchuchuli where the plaintiff's child drowned on 08/12/2014. This position is buttressed by the evidence from the Post Mortem report which shows that the deceased's cause of death was drowning as was evidenced by plume of froth from the deceased's mouth and nostril cluster. Two, though there was no complaint sent to the defendant by any person regarding the water leakage at the junction, there is also no Page 5 of 9 evidence on record rebutting the existence or otherwise of the said water leakages at the water junction. The only evidence on record is that which was advanced by the defence concerning the depth of the trench dug for water connection. The above suggests that, the water pipe connecting devices during the said water connection to one Mwajabu Mchuchuli were not properly tight or there happened excessive water pressure or technical faults which led to water leakages. It is unworthy thus to hold that a prudent and right thinking person can believe that the said water technicians properly accomplished their work or that they maintained regular inspections. Concerning the above, the Court is mindful of the evidence led to the effect that even some residents used the said water pool for their domestic use which suggests that the said water pool was so conspicuous not to be just bypassed. It is thus very unfortunate for the defendant to argue, as per her evidence that residents of the area did not inform the authority of the said water leakage (if any) as if that exempted her from inspecting the water pipes and systems to ensure that they were in order. One should however take note that, being a water junction, the defendant ought to have exercised extra care and diligence in insuring that water services passing through residential areas would not escape and affect lives and properties of its occupants as well as water loss which stands a scarce resource to be reserved. Notably, it is a primary duty vested to the defendant in ensuring that whatever conduct and or act of her employees, agents and or workmen are properly monitored and regulated with its infrastructures regularly monitored and inspected due to the crucial service they provide to the general public and the risk and danger they stand to cause to the general public and or resultant loss which may be encountered in due course. This Court therefore finds that yes there was a contributory negligence on part of the defendant that resulted into death of Fridaus Abdallah Matimbwa. However, as correctly submitted by the defendant's counsel, it is true that the plaintiff's wife shares some degree of negligence on her part. It is clear from the evidence on record particularly from PW1 and that in Exhibits PI, P2 and P3 that by leaving her two (2) years old child alone around the leaking water pipe or pool of water, the Plaintiffs wife largely contributed to her untimely unnatural death. Had she removed her from that area or washed her clothes elsewhere than that unauthorized place, the deceased would not have suffered that tragedy. All in composite, it is clear to this Court that both the Plaintiff's wife who is not impleaded and the defendant can at any rate be relieved from the liability due to their failure to take care of their primary responsibilities which, if diligently exercised, would not have contributed to the deceased death. In the premises, the 1st issue as expanded is answered positively. In respect of the 2nd issue as to reliefs, as correctly submitted by the defendant's counsel, the plaintiff did not avail evidence in proof of the Page 7 of 9 claimed Tshs. 15,000,000/= as funeral costs or the other claims on compensation for loss of life and damages resulting from trauma and psychological torture. It is settled principle of law in our jurisdiction that specific damages must be properly pleaded and strictly proved. In Zuberi Augustino vs. Anicet Mugabe [1992] T.L.R 137 at page 139 the Court of Appeal underscored:- "It is trite law, and we need not cite any authority, that special damage must be specifically pleaded and proved". In another case of Bolag vs. Hutchson [1950] A.C 515, the Court held at page 525 that:- " ............ They do not follow in the ordinary course. They are exceptional in their character and therefore, they must be claimed specifically and proved strictly". It thus follows that, the plaintiff is entitled to general damages as assessed by this Court. Now, considering that life of an innocent person has been lost due to negligence perpetrated by the defendant and the plaintiff's wife (deceased's mother) and considering the evidence in totality, this Court awards Tshs. Fifteen million (Tshs.15,000,000/=) to the plaintiff from the defendant who is impleaded and costs of the suit. Order accordingly. Judgment delivered this 10th day of February, 2017 in presence of Mr.Mbarouk Kasidi, Advocate for the plaintiff who is also present in person and Mr.Rabini Mafuru, Advocate for the defendant. Right of appeal is explained.