20071113 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM --- (CORAM: LUBUVA, J.A., MUNUO, J.A. And MSOFFE, J.A.) CIVIL APPEAL NO. 154 OF 2004 TANGAMANO TRANSPORT SERVICES CO. LTD ...... APPELLANT VERSUS AFRICAN BANKING CORPORATION (FORMERLY ULC TANZANIA LTD) ..................... ~RESPONDENT (Appeal from the decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam). (Kimaro, J.) dated the 9 th day of July, 2004 1n Commercial Case No. 225A of 2002 JUDGMENT OF THE COURT 30 October & 16 November, 2007 MUNUO, J.A.: On the scheduled hearing on the 30 th October, 2004, in Civil Appeal No. 139 of 2004, Mr. Gamba, the learned advocated who filed the appeal, and who had been duly served on the 29 th September, 2007 defaulted . ~.. . in appearanc~Jqr . ·. . . n9 known. reasori~:e . - -~ ~ had, on the '· previous day, filed a supplem~~1/ry\record of appeal which indicated.. ~ 2 that he was aware of the scheduled hearing on the following day. As counsel for the appellant failed to appear, Mr. Waisaka moved us to dismiss Civil Appeal No. 139 of 2004 with costs for non-appearance. We indeed dismissed Civil Appeal No. 139 of 2004 under the provisions of Rule 105 (1) of the Tanzania Court of Appeal Rules, 1979 which states, inter-alia: 105 (1) If on any day fixed for the hearing of an appeal the appellant does not appear, the appeal may be dismissed and any cross-appeal may procee~ unless the Court sees it fit to adjourn the hearing/ save that where an appeal has been so dismissed or any cross appeal so allowed has been hear~ the appellant may apply to the Court to restore the appeal for hearing or to re-hear the cross-appeal if he can show that he was prevented by any sufficient cause from appearing when_ the appeal was called for I.:. ,1·' 'I • I 3 j ...... f J "''\ .J i • ' .,.·" I • ,.J~ As there was no ground for adjourning Civil Appeal No. 139 of 2004, C'.·. we dismissed it for lack of prosecution, and proceeded to determine the cross-appeal now under consideration. The cross-appellant, Tangamano Transport Services Ltd. yvon the case in Commercial Case No. 225A of 2002 in the Commercial Division of the High Court of Tanzania, Dar es Salaam on the 9th July, 2004, before Kimaro, J. as she then was. In that case the cross- . appellant had sued for: (aJ an order for the restoration of a truck TZL 8574 and a trailer TZL 6836/ (b) payment of Sh. 31/200/000/= the respondent ought to have advanced to the appellant between the 1gh April, 2002 and the 31st Jul½ 2002 and any amount still outstanding until the restoration of the material truck and trailer in full,· (c) Tsh. 6/000,000/- damages namely - (i) Tsh. ~000,000/= damages for loss of.business/ . . . ~ .< ·:-·,:: ~\·:.-: >. ·! ·. : ~~ --?·z.':~:;·:,~;~~;:~~y;:~{?~~1.,:\f/if:idj~}~;-·_ ~·~~:•;lt·,~·:_•::-:~_:t~:i;y;',::~~ .. · ·.,· -· 0 1 · ,., '. ·,.. ·'' . . ... :. . ~ .,, .. ,. .,· u,~::_t.{#f:~i\i~i:~}j:~fii~~~;;iitiJ~iilit~~ilti1l~'•i~~11.~~12ttii 4 (ii) Tsh.1,000,000/- compensation for having suffered public odium and mental torture. (d) Interest at the Commercial bank rate from April 2002 to the date of judgment and full satisfaction. ( e) Costs of the suit; and (f) Any other relief deemed fit by the Court. The learned judge entered judgment in the following terms: 1. Restoration of the trailer TZL 6836 at the respondent's costs. 2. The respondent bank to pay the sum of Tsh. 45,495,000/= to the cross-appellant, the sale proceeds of the truck TZL 8574 by tender. 3. The respondent to pay a sum of Tsh. 6,000,000/= damages for mental torture and inconveniences. ' . L ...._.,._ • •• • 5 c::.1d:-}'"' . . _ J;:.;_'.bissatisfied with the above decision, the bank, through the services r(··! of Mr. Gamba, learned advocate, instituted Civil Appeal No. 139 of 2004 to challenge the decision of the High Court. Meanwhile, the decree holder cross-appealed in this appeal, i.e. Civil Appeal No. 154 of 2004. Civil Appeals No. 139 of 2004 and No. 154 of 2004 were listed before us for hearing on the 30th October, 2007. At the commencement of the hearing of the cross-appeal, the . Court, suo motu, raised the issue of the period of limitation of the cross-appeal. Mr. Waisaka conceded that he filed the cross appeal before he was served with the memorandum of appeal of the main appeal. He said he filed the Notice of Cross Appeal on the 20 th August, 2004 and lodged it on the ih December, 2004. He further argued, that although he filed the cross-appeal before the memo of appeal in Civil Appeal No. 139 of 2004 was served on him as stipulated under the provisions of Rule 87 (2) of the Tanzania Court of Appeal Rules, 1979, the irregularity is curable as it occasioned no miscarriage of justice. 6 The provisions of Rule 87 of the Tanzania Court of Appeal Rules, 1979 provide for cross-appeals. Rule 87 of the Court Rules --► states verbatim: 87 (1) A respondent who desires to contend at the hearing of the appeal that the decision of the High Court or any part of it should be varied or reversed, either in any event or in the event of the appeal being allowed in whole or in patt shall give notice to that effect specifying the grounds of his contention and the nature of the order which he proposes to ask the Court to make/ or to make in that event as the case may be. (2) A notice given by a respondent under this Rule shall state the name and address of any person intended to be served with copies of the notice and shall be lodged in quadruplicate in the appropriate registry not more than thirty days after service on the respondent- of. the 'rnemorandum of ;~ .. . app~ai ahd the f~iofd br ap;eal.· . ' . -~ . '- .. i ,. } •' 7 l \a (3) A notice of cross-appeal shall be substantially in the Form G in the First Schedule to these Rules and shall be signed by or on behalf of the respondent. In the present case, counsel for the cross appellant was served with the memorandum of appeal in Civil Appeal No. 139 of 2004 on the lih November, 2004. By then he had already filed the Notice of, Cross Appeal on the 20 th August, 2004. We are, however, of the settled view that filing the Notice of Cross Appeal prematurely before the memorandum of appeal was served upon him was not a material irregularity because it did not occasion any miscarriage of justice. We are satisfied, therefore, that the cross-appeal is competent. Counsel for the cross appellant raised two grounds of cross appeal namely that - 1. · The learned judge erred in law and fact by rejecting the prayer for compensation for the cross appellant in the quantum of Tsh. 209/100/000/= .... ·from· the llfh April 2002 to the.date of· hearing/ and Tsh. 300/000/-· daily from ,•,' •·· / \~ ...~. '. : ~- ~' ~ • ' •: •,•,➔ ... , ~---,.~ ..." ' • ~ i .. 1 •l o'-i"f :~, . . ••-,, C ·... .-...~ .!' " ., .. 8 the same date despite conceding that the appellant suffered damages. 2. That the learned Judge failed to grant a proper rate of interest to the appellant by granting only the 7% interest rate . instead of 12%. Submitting on the grounds of cross appeal, Mr. Waisaka argued that the learned judge erroneously declined to award Tsh. 209,100,000/= compensation to the cross appellant for loss of income when the respondent bank seized the truck and trailer which had, as shown in the agreement Exhibit P6, been hired to SAS for Sh. 600,000/= daily. With regard to the claim of Tsh. 209,100,000/= the learned judge observed that - The plaintiff also said he was praying for compensation ofTsh. 209/100/000/= from the 1Efh April 2002 to date but as stated herein before no sufficient evidence was led to show that the plaintiff would have received the amount. The prayer is rejected. That is indeed the correct position. To begin With, the cross ··· appellant produced no receipts or account books to show that the t / ~- .. ~ /,. . .- "... ,;. f· .. 1· ;-:-· '),- ; ~ f -. ~,;, -~ .: '. . i (\µ . / //" // 9 I / ··;•/ ! 1'"" hiring business had been generating income as stipulated in the I C)• hiring agreement, Exhibit P6. It was, in our considered view, the burden of the cross appellant to produce accounts to show that the company had been earning the money under the hiring agreement. Special damages, the law states, must be specifically proved. See the case of Mathias Mallya versus Anthony Temba and Temba Engineering Works Ltd., Civil Appeal No. 30 of 1995, Court of Appeal of Tanzania at Arusha [unreported] in which the Court held that- It is the duty of a first appeal court to carefully consider and re-evaluate the facts and in all respects before confirming the findings of the magistrate [in this case, judge] and the correctness of those findings. In Mathias Mallya's case, the Court tackled the issue of special damages and the need to prove the same specifically. Again, in the case of Cooper Motors Corporation Ltd. versus Moshi Anisha Occupational Health Services {1990) TLR 96 wherein the Court held that - ... \ . ' ,-,.){i~,: ·;·;:_ . ·:;> ~ :· : :·:_ \:;_: .:_: .. _· . Judge or jury, the appellate court is not justified to substitute a figure of its own from that awarded below simply because it would have awarded a different figure if it had tried the case... Before the appellate court can properly intervene/ it must be satisfied either that the judge/ in assessing the damages/ applied a wrong principle of law (as taking into account some irrelevant factor or leaving out of account some relevant one)/ or short of this/ that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. In the instant case, the learned judge awarded the claim of Sh. 6,000,000/= damages for loss of business, mental torture and inconveniences. The exorbitant claim of Tsh. 209,000,000/= was not - - - - - - - - - · - - · · ······· ..... -~-···--··-··· --------·. .. - -- substantiated by accounts so the learned judge rejected . -----······ it. We find ·-·· . no material in the evidence adduced at the trial to cause us to reverse the finding of fact by the court below. We therefore, find no merit in ground one of the cross-appeal. '· .;>. .... ·., ·,.1 ;_ ·-i•,·. ' . . . - - . ~';-_::,.\.~-•. -:~;:.~ . . : ·~·)•. Q.:,. ..:·.~1t:--~~-..;-:-.::1*~~••\.:;n._,\;rl!~·~:-f..♦.f·w~ ..• .e:~-~-.';_;·"·•:· :-•. ,. 11 On ground 2 of the cross-appeal, counsel for the cross appellant contended that the 7% interest granted by the learned trial judge was on the low side. He urged us to enhance the said interest to 12% per annum. He conceded, all the same, that the learned judge exercised her discretion judiciously. Interest on the decretal amount is provided for under Section ,. 29 of the Civil Procedure Act, 1966 Cap 33 R.E. 2002 which states . verbatim: 29. The Chief Justice may make rules prescribing the rate of interest which shall be carried by judgment debts/ anct without prejudice to the power of the Court to order interest to be paid up to [the] date of judgment at such rates as it may deem reasonable/ every judgment debt shall carry interest at the rate prescribed from the date of the delivery of the judgment and the same shall be satisfied. Section 30 of the Civil Procedure Act, 1966 fixes 7% interest on costs: .. .... ,•- . .' . , ··-~. . ,:_::·\.·.•:._: .' .. ·;~ ' Ill • ,. ·••. l-.LJ ! <;. \• \\1 ·• I! '-•...., 12 j ...... at any rate not exceeding seven percent per annum/ and such interest shall be added to the costs and shall be recoverable as such. On the basis of the provisions of Section 30, we think the 7% interest awarded by the learned judge is reasonable and adequate. Ground 2 of the cross appeal is equally devoid of merit. In the light of the above, we dismiss the cross appeal with costs. DATED at DAR ES SALAAM this 13th day of November, 2007. D.Z. LUBUVA JUSTICE OF APPEAL E.N.MUNUO JUSTICE OF APPEAL I I J. H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original. . t?i"·••if~ ~~~ • ' '• ,..., ...... ~ . ', .,,_. t , ~ .• ~ ·t ~ 4 ~ . ' ~ .. • .. -·•·' • . .. -t . ~ ~•: ,~,. ' •I• I'