20161128 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 22 OF 2014 AUGUSTINO OBADIA MANYANGA t/a MESIKA DISPENSARY .................................... 1sr APPELLANT ESTl-:IER ERICK...................................................... 2 ND APPELLANT VERSUS IBRAHIM HAMAD RAMADHANI ................................ RESPONDENT JUDGMENT MKASIMONGWA, J. This appeal arises from the decision of the Resident Magistrates Court of Dar es Salaam at Kisutu in Civil Case No. 272 of 2007 in which, based on a tort of negligence IBRAHIM HAMAD RAMADHANI sued AUGUSTINO OBADIYA MANYANGA and ESTHER ERICK (1 st and 2nd Defendant respectively) seeking for the following reliefs. 1. An order for payment of Tshs. 2.5 Million being special damages 2. An order for payment of special damages 3. An order for payment of punitive damages 4. An order for payment of interest at court rate from the date of judgment till payment of the decretal sum 5. Costs of the suit 6. Any other remedy the court will deem equitable to grant. It was alleged that the 2nd defendant is any employee working with Mesika t Dispensary which is owned by the 1s Defendant. On 1ih of July, 2006, the plaintiff submitted himself to the Dispensary for treatment when the 2nd defendant did negligently and without due care administer quinine injection on the right side buttock of the plaintiff who immediately therefore suffered by paralysis. In the process of being 1 .. treated the plaintiff spent a sum of Tshs. 2,500,000/= being medical, transport and other incidental expenses which the plaintiff claimed from the defendants as special damages. The plaintiff also suffered mental pain and torture following the deformity which he has now to live with. He claimed therefore for general damages. In its decision the trial court found that the type of injury the plaintiff susta.ined is a result of being negligently injected in his sciatic vein the needle in the course of administering injection by the 2nd Defendant. The 2nd Defendant was therefore found liable and the 1st Defendant vicariously liable. As to the damages despite the fact that the court found no evidence by the plaintiff telling it as to how much he incurred in the course of his medication in relation to the injuries he had sustained, it found it is a true fact that had incurred costs incidental to the medication. The court therefore awarded the plaintiff with the sum claimed for specific damages. Considering the occupation of the plaintiff, the court awarded him with a sum of Tshs. 10,000,000/= as general damages, Shs. 500,000/= as punitive damages and 12% of the decretal sum as from the date of Judgment to the date of full payment of the decretal sum as well as costs. The Defendants are aggrieved by the decision of the trial court. They therefore appeal to this court. In their joint memorandum of Appeal filed on 13/3/2014 the appellants have raised fo"ur grounds of appeal. When the matter come up for hearing before me there appeared Mr. Frank Killian and Miss Anna Marealle the respective learned advocates for the Appellant and Respondent. In my view what the counsel for the Appellants submitted in respect of the nd 1st ground covers also the 2 grounds. In the two grounds of appeal the appellants fault the decision of the lower by showing that, the court did not accord them with an adequate hearing and that it prematurely closed the defendants' case. In this regard the learned counsel submitted that the trial court erred for he did not observe the provisions of Article 13 (6) (a) of the Constitution of the United Republic of Tanzania (the Constitution). On 22/11/2013 when the suit came for defence hearing the appellant sought for adjournment of the matter. The court adjourned the hearing and fixed the hearing to proceed on 18/12/2013. The Appellations' counsel could not appear 2 as he had gone on annual leave as notified the court under his letter dated 15/12/2013. Dispite the notification the trial court proceeded by writing the judgment. Mr. Killian submitted that the annual leave was the counsel's right and the leave constituted a sufficient cause from adjournment of the hearing of the suit. As there was sufficient reason to justify the counsel's absence thus not fair for the court to close the defendants' case. In his submission purported to have been made in support of the 2nd ground of appeal, the appellants' counsel contended that in terms of Order VIIIA Rule 4 speed track II to which this suit was fixed on 26/6/2008 expired sometime in 2009. The speed truck was however extended on 3/5/2010 for 14 months. As such all proceedings as from June, 2009-3/5/2010 were illegal and they should be nullified. As to the alleged negligence Mr. Killian submitted that there was no evidence adduced by the plaintiff and his witnesses to the effect that the Appellant had failed to look for proper nerves or to use a professional care when he was attending the Respondent in this appeal. Generally there were no ingredients of negligence tested by the court in this case. Exhibit P.2 clearly shows that there was no negligence on the part of the appellant when he was attending the Respondent and that what happened could have happened even to any other person. The court below did not consider this Exhibit 2 in its decision nor did it consider the clear evidence given by DW.1 that the problem the Respondent had encountered with was capable of being treated, but the Respondent did not adhere to the treatment requirements and that fact cannot be attributed to the Appellant. As to the reliefs granted, Mr. Killian contended that the trial court erred when granted the Respondent with specific damages to the tune of Tshs. 2,500,000/= as there was no evidence given to show how much had the Respondent incurred to justify the amount. As the Respondent did not undergo fully the treatments the amount he was awarded as general damages was not justified. He added that as negligence was not proved there was no justification in granting Tshs. 500,000/= punitive damages awarded to the Respondent against the appellant. On the basis of the submissions above the appellant prays the court that it allows the appeal with costs. 3 nd On the other hand Miss Marealle submitted in respect of the 1st and 2 grounds together to the effect that; the suit was dragging in court for about five (5) years. On 22/11/2013 after when JUVENILE TILLYA (DW.l) had testified the appellant's counsel asked the court to adjourn the matter to come on 18th and 19th /12/2013 for hearing and the court fixed it for hearing on 18th - 19th /12/2013. On 13/12/2013 the counsel for the appellant wrote to the court informing that he was going to start his annual leave on 16/12/2013 and made a proposal that the suit comes for hearing on 15/1/2014 and 16/1/2014. When the matter came up for hearing on 18/12/2013 neither the counsel for neither the appellant nor the appellant appeared in court. This amounted to abuse of court processes and the court was therefore justified to invoke the provisions of Order XVII Rule 3 of the Civil Procedure Code as the defendant had lost interest in the matter. The defendant cannot be heard stating that his case was prematurely closed. The Appellant/Defendant was afforded with an opportunity or right to be heard and he had DW.1 testified in his favour. The 1st and 2nd grounds of appeal therefore lack merit. On the third ground of appeal Miss Marealle submitted that the trial court had properly analyzed the evidence adduced before it hence found the defendant negligent for his deeds which caused the Respondent suffer permanent incapacitation. PW.2 who supported the evidence of PW.l told the court in evidence that there was negligence in administering injection to the plaintiff by the 1st defendant that caused paralysis to the plaintiff. DW.l had the same story of evidence. She stated in evidence that she found the plaintiff with impaired sciatic nerve caused by the injection administered by the Appellant. Referring the court to the decision in YODOLINA ALFAKSADI VS MEDICAL OFFICER, INCHARGE MKINGA HOSPITAL (1992) TLR 135 Miss Marealle asked the court not to find any merit in the appeal for negligence was established and the negligence caused the lifetime injury on the Respondent. As to the forth ground of appeal Miss Marealle reminded the court of the principle that there is no wrong without remedy. The Respondent there could not left leave empty handed, while he was wronged by the appellants. The court is empowered to assess and determine the damages to be awarded in cases of personal injury - 4 , NAUSHAD M. H. VIRJI V /S TANZANIA INTERNATIONAL F. S LTD AND ANOTHER {1992) TLR 154, which was amplified in the case of HAJI ASSOCIATES CO. LTD AND ANOTHER V/S JOHN MKINDWA {1986) TLR. 107 that genera\ damages are compensatory in nature. Although there was no proof of the special damage claimed, the court awarded it as incidental expenses. Miss Merealle prays the appeal to be dismissed with costs. By way of rejoinder submission, Mr. Killian stated that the Respondent admits that specific damages were not proved. Over six years the matter was pending in court the defence case dwelt for six months only. The defendant's counsel had interest in the matter and that is why they wrote a letter to the court and proposed for a hearing date. The counsel added that the plaintiff did not suffer any permanent incapacitation and the case cited by his learned sister are distinguished for they are different from this now at hand. That is all from the parties. As regards to the first two grounds of appeal the questions to be answered are whether the Appellant was not accorded by the trial court the right to be heard and that the defence case was prematurely closed by the court. In answering the question, first: it is clear from the record that on the 22/11/20 13 the court adjourned hearing of the case at the instance of the Appellant's Advocate Who is recorded to have made the following prayer: "I pray for adjournment because I do not have a CID with me which is one of the exhibits we intend to rely in our defence case" Following the prayer the court made the following order: "By consent defence hearing on 2 consecutive days i.e 13th and 19 th December, 2013" th On lS /12/2013 when the matter came up for hearing the court made a . ru 11ng upon receiving the letter informing that the counsel for the Appellant was on ' 1eave denying the prayer for adjournment and invoked the provisions of Order XVII R ' U1e 3 Of the Civil Procedure Code. The Rule reads that:- s - "Where any party to a suit to whom time has been g ..- . anted f ·1 5 to produce his evidence or to cause the attend~l"I ai witness, or to perform any other act necessary to 1:.;:e of his progress of the suit, for which time has been allo""ec:1 e further may not withstanding such default, proceed to de~ic:i' th e court forthwith" · e the suit The rule provides for the powers of the court where a party upon being granted with time fails to produce evidence, or fails to cause the attendan . ce of his witness fails to do any other act necessary to the further progress of the su. . or it. It is clear to m that the Appellant's case was to proceed with the hearing on 1a e 112/2013. This came upon his a request for adjournment by the appellants' advocate. "ih e date was so fixed upon consensus by both parties. The hearing could not proceed O n 1 8/12/2013 for th · ~ reasons that the counsel for the appellants was on leave which th e e court did not agr with. In my view where a matter is fixed for hearing on a date ee agreed upon by all parties and on that date a party absents himself for the reason th at he has proceeded into an annual leave and since ones annual leave does not come a s an emergence th fact that the party is on leave does not constitute a reason why th h . ' e e earing should not proceed as agreed. In such circumstances the appellant could n t 0 be heard allegin that the court did not accord him with the right to be heard. Su g PPose Appellant w denied such a right the remedy is not obtainable by prefer( as ing the Appeal Th appellant ought to have returned to the trial court applying for a · e n order reviewing th order to proceed without him being fully heard. e Secondly: Going by the provisions of Order XVII rule 3 f h o t e Civil Procedu Code the court is empowered to proceed with a matter Vvhich ~ re 'alls squarely th conditions set out in the provision. Here the allegation that court d"d e 1 Prematurely clos the case does not arise. In view of the above I find no merit in th st e e 1 and 2nd grounds of appeal. As to the third ground of appeal the issue to be determined . is whether the court had properly analyzed the evidence before it. Going by the evidenc . . e it is clear that upo falling sick the Respondent submitted himself to MESIKA DISPE n st NSARY which is owned by the 1 Appellant where was attended by the 2nd appell t . an . It rs not disputed 6 that in the course of treatment, the 2nd Appellant did inject an injection to the Respondent which had affected his sciatic nerves. This took him to Mwananyamala Hospital and MOI (Muhimbili Orthopedic Institution) for Treatment. DW.1, one JUVENILE TILYA confirmed this by stating that: " ... found that PW.1 had his sciatic nerve impaired whereupon it was at partial stage which was caused by the needle (Injection) and not the medicine" In my opinion a professional medical attendant who rightly directs his mind in injecting a person an injection when rendering treatment is well aware that the injection should not get its way into the sciatic nerve. He the 2nd Appellant did allow· the injection into the nerve. The question why? The Respondent says it is from negligence whereas, the defendants were silent for they had forfeited their right to be heard and I think it was proper for the court below to hold that it was from the 2nd Defendant's negligence which the respondent suffered the injury. I am inclined to hold that there was proper analysis of the evidence of the court in this matter. Considering the reliefs, the court found it to have not been established as to how much the plaintiff had suffered special damage. Yet the court awarded him with Tshs. 2,500,000/=. Special damages once pleaded the plaintiff is bound to prove them the court cannot award special damages where they have not been proved. As the court had held that the damages have not been proved, it was wrong for it to award the claimed sum for special damages. The court said the sum is payable as incidental expenses. I think this could be well pleaded under the claim for general damages. I therefore quash the sum of Tshs. 2,500,000/= awarded by the court to the respondent as special damages. As to the amount awarded for general damages, the Respondent claimed for general damages based on mental pain and torture suffered following deformity which he has now to live with. There is evidence given to the effect that what the Respondent had suffered is treatable. The Respondent however did not follow well the treatment which would have negated the sufferance. In considering the amount payable as general damages, the court below was led by the Respondent's job. He is a mason. In 7 that regard I will not disturb the amount of Tshs. 10,000,000/= awarded to the Respondent as general damages and Tshs. 500,000/= as punitive damages As to the interest on the decretal sum the court ordered for payment of 12% interest. What is clear to me is that the amount was ordered against the provisions of order XX Rule 21(1) of the CPC the same is reduced to 7%. In the light of the above discussion the appeal is partly allowed. The awarded to Tshs. 2,500,000/- by special damages is quested and the interest on the decretal sum is reduced to 7% per annum. Each party should bear his own costs. Dated at Dar es Salaam this 28th of November, 2016 JUDGE 28/11/2016 8