20190830 TZHC Dar es Salaam

IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 43 OF 2015 BARRETTO HAULIERS TANZANIA LTD ......................... PLAINTIFF VERSUS TANZANIA PORTS AUTHORITY ................................... DEFENDANT .· . JUDGMENT Date of last order 16/07/2019 Date of Judgment 30/08/2019 NGWALA, J. BARRETTO HAULIERS TANZANIA LTD, the plaintiff, has sued Tanzania Ports Authority, for the release of its long detained Commercial truck and trailer with Registration No. 657 CBN and T. 875 AAW. The plaintiff prays for the following reliefs:- (a) A declaration that the defendant is detaining the truck with registration No. T; 657 CBN and T. 875 AAW illegally. (b) Permanent injunction to restrain the· defendant, its workman and agents from determining the truck so seized and hand it over to the plaintiff unconditionally. (c) Payment of Tanzania shillings Three Twenty . million Four hundred Thousand (320,400,000/=) being loss of income from 1 the date of determining the trucks to the date of instituting this suit. (d) Interest on (c) above at the rate of 7% from the date of filing this suit to the date of judgment. (e) Payment of Tshs. 800,000/= the equivalent of U$500 being loss of income per day from the date of filing this suit to the date of judgment. (f) Payment of Tshs. 200,000,000/= being general damages or as it may be assessed by this honourable court. (g) Interest on c, d, e and f above at the rate of 21 % from the date of judgment to the date of payment in full. (h) The defendant be condemned to pay costs of this suit. (i) Any other relief as the court shall deem fit and just to grant. The plaintiff was represented by Mr. Wawa, learned advocate while the defendant had the services of Miss Hossana Mgheni, learned State Attorney assisted by Miss Lucy Kimaryo learned State Attorney. The parties agreed on the following issue for determination. 1. Whether the defendant was in violation of any law in detaining . the plaintiffs trucks with Registration No. T. 657 CBN and T875 AAW. 2. Whether the plaintiff has suffered any loss of profit or business. 3. To what extent has the defendant contributed to the said loss. 4. What relief(s) if any are the parties entitled to. 2 Two witnesses namely Jude Barreto, (PWl) and E.9016 Dt. Cpl Edward (PW2) testified to prove the plaintiff case. On the other hand the defendant summoned a total of three witnesses. These are Fikiri s/o Musiba, (DWl), Emmanuel s/o Geofrey Muro (DW2) and Nassoro s/o Mulilwansi Bakari (DW3). A total of eleven (11) exhibits were tendered and admitted in the plaintiff case which shall be referred in this Judgment. Before resolving the issue framed by the parties and agreed by the court; a brief outline of the established evidence and the submissions by the learned counsel from both parties is given as follows. PWl is the Managing Director of the plaintiff. It is a the Company with trucks for transportation of goods mainly containers to and from Dar es Salaam Port, of the defendant. Prior to the institution of this suit in court on 13th March 2015 on 21st February 2014, one of the plaintiff's trucks while coming out of the defendant's main entrance gate, designated as .. gate No. 5 was involved in an accident together with other four trucks. The truck was hit by another truck which was coming down. The track accelerated to reverse slightly hitting the gate post. PWl went to the accident area and reported to the Traffic police. The Traffic Police went to the scene and directed the trucks which were involved in that accident to be driven to the Police Station. Thereafter the other trucks were sent to the police station but the plaintiffs truck was detained by the defendant despite the information that the truck is insured. PWl attempted to convince the defendant to release the truck on ground that the plaintiff had entered a contract with Tanzania Road Haulage which was ready to pay for the damage of the gate but the efforts were in vain. 3 The plaintiff therefore made a formal complaint vide letters dated 25th and 28 th February, 2014 ( exhibits P3 & P4)explaining the extent of loss incurred for detaining the truck which was among the trucks purchased on loan for commercial purposes. Raising a demand letter thereof, all in vain. On 6th March, 2014 the defendant wrote the plaintiff a letter with Reference No. DC/L/7/01 (exhibit PS) requiring the plaintiff to pay T.shs. 252,420/= being costs for the damaged gate caused by the plaintiff's truck. When the plaintiff went to pay that sum to the defendant, they refused to accept the money, (Exhibit P6). Instead on 24th April, 2014, the defendant wrote to the plaintiff claiming payment of Tshs. 17,728,000/= (Exhibit PS) being previous outstanding debts. The letter (exhibit PS) was served to the plaintiffs (PW1), on the same day after PWl had complained vide a letter dated 24/04/2014 (Exhibit P7), that the defendant's act of detaining the truck and refusing to accept payment of Tshs. 252,420 was causing immense loss to the plaintiff. The truck remained detained by the defendant. PW1 testified that the truck is among several trucks purchased on loan from Tata Africa Holding Tanzania Limited on condition of remitting the sum of US $12,000per month in thirty installments. PW1 testified that the detention of the truck has caused a big loss, as they lost their contract with TICs and Tanzania Road Haulage where the plaintiff used to earn up to 73,000,000/= per week. The plaintiff also failed to service its loan of trucks to TATA, Holdings which accrued to USD 500,440 as per exhibit P9. 4 The defendant, through its witnesses, DWl, DW2, and the rest of the witnesses maintained that, it is the plaintiff's truck which caused damage to gate No. 5. They conceded the fact that they have still detained the truck (T.657 CBN and T875 AAW), because the plaintiff did not pay the cost for maintenance of ·the gate to the tune of Tshs. 1,343,000/= and another previous debt of 76,385,000/=, totaling to Tshs. 17,728,000/=. DWl admitted that earlier on 06/03/2014 they wrote to the plaintiff demanding Tshs. 252,420/= as costs for the damage, later on 24/04/2014, they wrote another letter which changed the sum to 1,343,000/= and finally T.shs. 15,728,000/=. DW2 admitted the fact that since April, 2014 to date they are still detaining the said truck. At the conclusion of the hearing the parties filed their respective final written submission. Mr. Wawa the learned advocate for the plaintiff submitted that the defendant was in violation of law by detaining the plaintiff's truck T 657CBN, T 875 AAWW. The defendant was in violation of the Tanzania Ports Act, 2004. According to Mr. Wawa the TPA, 2004 does not provide anywhere that the Port may detain a truck involved in the accident out of Port Boundaries indefinitely. Mr. Wawa asserted that Regulation 45(2) (f) of the Regulations made under Part VII of the Ports Act, No. 17 of 2004, provides for the procedure to be taken ·· where there is an accident or damage by taking the particular person or vehicle to the nearest police station. Similarly Rule 92 of the said Regulations provide for the procedure to be taken where an accident occurs. 5 On second and third issues together, that is whether the plaintiff has suffered any loss or business and if the answer is in the affirmative, to what extent and did the defendant contribute to the loss. Mr. Wawa submitted that, it is in the evidence by PWl, that the plaintiff had business agreement with Tanzania. Road Haulage (TRH) and Tanzania Inland containers Services (TICs). In these agreements the plaintiff used to earn about US$ 500 per day, and about Tshs 13,958,928/= per week as shown on exhibit P9. It is contended that the unlawful detaining of the truck led to failure by the plaintiff to service the loan with TATA AFRICA HOLDING TANZANIA LTD on the agreed schedule of time. The plaintiff was sued and condemned to pay a total of USD 132,000 plus 12% interest per month from 1st August 2014 to the date of judgment and 2% interest every month to the date of full payment. On the claim of tshs.17,728,000/= by the defendant Mr. Wawa averred that the same is not proved as per section 112 of the Evidence Act, Cap 6 R.E 2002 and the Case of Masolele General Agencies v. African inland Church Tanzania [1994] TLR 192. Where in the Court held that: "Once a claim for a specific item is made that claim must be strictly proved, else there would be no difference between a specific claim and a general one ..... " The fourth issue is to what reliefs are the parties entitled to. It was Mr. Wawa's submission that the defendant be ordered to pay Tshs. 1,960,000,000/= for the 1770 days, but also award the plaintiff the reliefs indicated in the plaint. 6 In response, Miss Lucy L. Kimaryo, learned State Attorney, submitted that it is a known procedure even to the plaintiff that a truck which causes accident is detained. She argued that if the claims against the plaintiff were higher then, the plaintiff ought to have appealed to the claims committee under Section 8 (1) of the Ports Act, No.17 of 2004. As that Exh. Pll (The Sketch map of the accident) was not signed by DW2, it cannot be used to determine the rights of the parties. Responding to the second issue, Miss Lucy submitted that. In accordance with section 110 of the Evidence Act, Cap 6 R.E. 2002, the burden of proof lies with the plaintiff to prove its claims. The case of Bolag v. Hutchsm 1950 A.C. 515 at page 525, and the case of Zuberi Augustino v. Anicet Mugabe [1992] TLR 137, that it is a principle of law, that special damages must be specifically proved the plaintiff failed to prove the lost business and its daily income, where he should not be entitled to specific damages. With regard to general damages, which is quantified to the tune of Tshs. 200,000,000/= the State Attorney submitted that the amount is unsubstantiated, leave along the principle that general damages are awarded at the discretion of the court. Coming to the third issue, Mrs Lucy Submitted it was defeated by the 2nd issue which has been answered on the negative. The court was invited to apply the doctrine of contributory negligence to the accident that was caused by the plaintiff's truck. 7 On the reliefs prayed by the plaintiff. It was submitted that the specific damages were not specifically and strictly proved. This case should be dismissed with costs. In view of the above summary of the gist of the case let me resolve the- issues as framed. The first issue is on whether the defendant was in violation of any law in detaining plaintiff's truck. It is common ground that, the plaintiff's truck, with Registration No. T 657CBN and T875 AAW is detained by the defendant to date. The issue is whether the act is lawful or not. The Ports Authority establishment and its operations is regulated by the Ports Act, No. 17 of 2004. Under section 92 of the Act, all accidents that occur within the premises of the authority must be reported, either to the Ports Authority to the Minister of the police. rn· addition Regulation 45 (2) (f) (ii) of the regulations made under section 44 of Act No. 17 of 2004 provides that: "Any person who is found within the limit of port in circumstances which provide reason to believe that such person has committed or is about to commit theft of or damage to any property belonging to or in possession of the authority. (i) NA. 8 (ii) Any person detained under subsection. (i) shall unless released be forthwith handled over to the nearest police station to be dealt with according to the law .. The evidence on record shows that having noted that the plaintiff has damaged gate No. 5 through its truck did not report to the nearest police station, instead kept on detaining the truck (657CBN, T875 AAW). The mandatory requirement of the law as rightly argued by Mr. Wawa, was to handover the matter to the police, as the defendant did with the rest of the trucks which were involved in the same accident. Failure to handover the matter to the police, the defendant should have released the truck. However in her final submission, Miss Lucy, learned State Attorney vehemently submitted that the, defendant was not in violation of any law, without telling the court which law empowers the defendant to detain the plaintiff's truck which was insured as per Exh. P2 and hence in any case the insurance company could have compensated the damage caused by the truck. The learned State Attorney referred this court to Section 8 (1) of the Ports Act, which in my considered view is irrelevant to this issue as the same d~als with power of the board to appoint Committees of Tanzania Ports Authority. It should be remembered that the issue here is whether the act of detaining the truck without releasing or handling it over to the police was lawful. 9 To answer this question this can be easily determined by looking into the provisions of section 89 (2) of the Ports Act, 2004, which reads: 89 (2) The Authority may detain any such vessel or object until the costs of making good such damage and expenses described in subsection (1) have been paid to the Authority, or may require the master, owner or person in charge of the vessel or object to deposit such sum of money or furnish such security as may be required by the Authority to meet such cost and expenses". The interpretation of that quoted provision of section 89 (2) of the Ports Act, 2004, is that it is not coached in mandatory terms that a motor vehicle that causes damage to the property of the Authority must be detained because, the word may is used that "may detain any such vessel, object which included vehicles as provided also under section 89 (1) of the At that Reads:- "89 (1) Where damage is done to Ports equipment, facilities or any other property of the Authority by any vessel, vehicle, person or any floating object, the costs of making good the damage, including expenses of any inspection or survey carried out by or on behalf of the Authority to ascertain such damages may be recovered by Authority from the master, owner or Agent of Vessel after or floating object". 10 In view of the above quoted provision, under the said law the Defendant may detain a vehicle for purposes of making good damages; but as rightly argued by Mr. Wawa, the laid down procedures under Regulations of the Ports Authority had to be followed. The Defendants are and were required to act reasonably in Pursuance of making good the damage that was alleged to have been caused by the truck of the plaintiff. Going by Exh. Pll (the sketch drawing of the accident), it is patently clear that truck No. CBN, T.875 AAW, did not cause damage to the gate in isolation with other trucks. Other trucks namely, T.279 ANR/T438 IVECO, T.664 AML/T946 AWP DAF and T.705 AJR OAF were also involved, but the defendant handled them over to the nearest Police Station as required by the law. The plaintiff's truck was detained despite knowledge of the insurance that if any could be paid for compensation. In view of the cited provision, on the face of evidence adduce by the witnesses, it is quite clear that the defendant acted unreasonably, illegally, and with ill intent in detaining the plaintiff's truck with registration No. T657 CBN/T.875 AAW. I hold so because it is quite clear from the exhibits and the testimony of PWl tht they had refused to "give bribe" to the defendants employees. To have the truck released. Next question is whether the plaintiff has suffered any loss of profit or business. Submitting in respect of this issue Miss Lucy, learned State Attorney argued that, the plaintiff has totally failed to specifically prove that, it suffered any loss of profit to its business as per section 110 of the 11 .• evidence Act, Cap. 6 R.E. 2002 on the burden of Proof and the case of Zuberi Augustion vs Aniceti Mugabe [1992] TLR 137. PWl however had tendered exhibits that were uncontroverted to prove loss of profit or business, The exhibits tendered on loss of profit and or business has been. · specifically proved. PWl tendered in evidence electronic receipts (EFO receipts) worth Tshs. 13,958,928/= for the work done only in a week which she previously used to earn. The EFOs were admitted and marked Exh. P9. The earnings were due to its earlier business arrangements with TICs and TRH whose contracts have been terminated due to the acts of the defendant. Further to that, PWl said the plaintiff used to earn USO proof of Tshs 500 USO per day from the truck's activities. This also was affected by the detention of the truck and its trailer with. Registration No. T.657 CBN/T.875 AAW that, was knocked by truck No. T.664 AML/T.946 AWP DAF, hence accelerated backwards to (reverse) and consequently knocked the gate. In the circumstances the principle of contributory negligence cannot be invoked. Simply stated, the loss or damage to the . plaintiff's business is whole caused by the act of the defendant detaining · the plaintiff's truck unlawfully. Had defendant considered the plaintiff's request to settle the matter and release the truck timely, their dispute could not have landed in court. Lastly is to what relief(s) are the parties entitled to? Having found the three issues above in favour of the plaintiff, it goes without saying that, the plaintiff is entitled to the reliefs claimed. In the circumstances of this suit the plaintiff is granted the reliefs as follows:- 12 I (a) It is hereby declared that the defendant is detaining the truck with Registration No. T. 657 CBN and T. 875 AAW illegally. (b) Permanent injunction is hereby issued to restrain the ·defendant, its workmen and agents from detaining the truck so seized. It is further ordered that the defendant should handover the truck to the plaintiff within 14 days from the date of this judgment unconditionally. (c) The defendant should pay the plaintiff Tanzanian shillings Three twenty million four hundred Thousand (320, 400,000/=) being loss of income from the date of detaining the trucks on 13th March 2014 to the date of instituting this suit. The sum is inclusive of the general damages by accelerated wear and tear of most parts of the truck that has been in standstill, and close to the corrosive moisture from the ocean from the date it was detained to the date when the suit was instituted in court. The above sum also includes loss of income from the date of filing the suit to the date of judgment, interest at court's rate, disturbances, psychological torture and the costs of the suit. ~. A. F. Ngwala JUDGE 30/08/2019 13