BUMACO INSURANCE C

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SU B-REGISTRY ATTABORA CONSOLIDATED CIVIL APPEAL NO. 05 & 10 OF 2023 (Originating from the decision oflgunga District Court in Civil Case /Vo. 01 of2022) BUMACO INSURANCE COMPANY LIMITED .......... APPELLANT VERSUS ELIAS DOTTO JUSTINE..................................... . 1st RESPONDENT HAMAD SHENI SALMINI ........................................ .............. 2nd RESPONDENT MICHAEL RAMADHAN MHANDO ............. ................... . 3rd RESPONDENT JUDGMENT Date oflastOrder: 24/07/2024 Date ofJudgment: 30/07/2024 KADI LU, J. On 08/02/2022, the 1st respondent filed a civil suit in Igunga District Court against the 2nd and 3rG respondents. He claimed for TZS. 224,000,000/= as specific damages for the injury he had suffered after the accident allegedly caused by the 2nd respondent's Scania passengers' bus that was driven by the 3rd respondent at the time of the accident. He also claimed for general damages, interest, and costs of the suit. When the case carrie up for necessary orders on 16/02/2023, the Advocate for the plaintiff prayed and was granted leave to amend the plaint to add the appellant as the 3rd party contending that it was: a necessary party to the suit. In the appellant's written statement of defence, it averred that it had no insurance contract with the 2nd respondent. The record shows that after the accident, the 3rd respondent was charged, convicted, and sentenced for negligent driving. He paid TZS. 150,000/= as a fine and the trial court ordered that whoever was affected by the accident had to be compensated through an insurance scheme. Throughout the case before the district court and in this i appeal, the 3rd respondent never attended court proceedings despite being duly served. After the trial, the district court of Igunga found that the 1st respondent failed to prove the specific damages. It, nonetheless, awarded him genera! damages at the tune of TZS. 50,000,000/-, interest at the rate of 5% from the date of judgment to the date of full payment, and costs of the suit. “The decision irritated the appellant and the 2nd respondent. The appellant preferred Civil Appeal No. 10 of 2023 whereas the 2nd respondent filed Civil Appeal No. 05 of 2023. Before the hearing of the appeals, the court found it convenient to hear and determine them jointly so, they were consolidated. The appellant registered the following grounds of appeal: 1. The trial court erred in law and fact by entertaining the suit where the Td defendant was wronglyjoined. 2. The trial court erred in law and fact by deciding the suit on unclear, uncertain, and ambiguous framed issues. 3. The trial court erred in /aw and fact by putting a burden of proof of the existence of the insurance contract on the 3d defendant and not the 1st defendant as was the person who alleged the fact. 4. The trial court erred in law by wrongly applying the principle of adverse inference. 5. The trial court erred in law and fact by awarding the plaintiff damages without proof of injury. 6. The trial court was impartial (sic) against the 3d defendant. 7. The trial court wrongly ruled that there was a contract ofinsurance between the T and 3d defendants while the evidence on record is to the contrary. 8. The trial court erred In law and fact by ruling that the 2nd defendant was reckless without proof of a traffic police sketch map arid proper particulars of negligence by the plaintiff. On the other hand, the 2nd respondent's grounds of appeal are as hereunder: 2 7. The District Court erred in iaw for failure to discover that it was the appellant who was entitled to pay compensation to the 1st respondent 2. The District Court erred in law for failure to observe that the appellant did not participate in the pre-trial conference. 3. The District Court erred in law for failure to consider thatparties to the suit never framed issues before the commencement of the trial 4. The District Court erred in law for failure: to examine the evidence that the 1st respondent did not prove the case to the balance ofprobabilities. During the hearing of this appeal, the appellant was represented by Mr. Linus Munishi, the learned Counsel, the 1st respondent was represented by Mr. Emmanuel Sululu, Advocate whereas Mr. Samwel Ndanga, Advocate represented the 2nd respondent. As hinted, the hearing proceeded exparte against the 3rd respondent. Mr. Linus submitted that the trial court erred to proceed with the matter without considering that the appellant was wrongly joined. He argued that the appellant was not privy to the contract between the 1st and 2nd respondent so, the 1st respondent had no power to sue the appellant without compliance with 3rd party procedure under the Civil Procedure Code. Mr. Linus elaborated that the 2nd respondent being the defendant therein was responsible for joining the appellant if he had the right of indemnity against it. He referred to the case of Bumaco Insurance Company Ltd v. Getruda John Levi & 2 Others, Civil Appeal No. 6921 of 2023, High Court of Tanzania at Shinyanga. Concerning the 2nd ground of appeal, Mr. Linus submitted that the issues framed by the trial court were ambiguous, uncertain, and unclear. According to him, the issues do not show the position for which the 1st respondent was employed, or his responsibilities, and there was no issue directed at establishing damages suffered by the 1st respondent. 3 Submitting on the 3rd and 7th grounds of appeal, the learned Advocate asserted that the trial court shifted the burden of proving the case to the appellant contrary to Section 110 of the Evidence Act. He explained that the 2nd respondent requested to tender an insurance contract but was denied so, he failed to prove the existence of an insurance contract between him and the appellant. He argued that the appellant had no duty to prove the existence of the said insurance contract, He supported his argument with the case of Ahmed Freight Limited and Another v. Eco Bank (T) Limited, Court of Appeal at Dar es Salaam. According to Mr. Linus, there was no proof of insurance contract. On the 4th ground, he submitted that the trial court applied the principle of adverse inference wrongly. In his opinion, the principle is applicable in criminal cases only where the standard of proof is beyond reasonable doubt. He referred to the case of Simon Mugejwa & Another k Ibrahim Magembe, Civil Appeal No. 123 of 2020, Court of Appeal at Mwanza, and AziziAbdallah v. R.f [1991] TLR 71. Regarding the 5th and 8th grounds of appeal, he averred that the trial court awarded the 1st respondent damages without proof of damage or injury. He expounded that there was no evidence to prove damage to the 1st respondent which was caused by the appellant's action. Mr. Linus submitted in addition that the trial court erred in deciding the case in favour of the 1st respondent without having a sketch plan of the accident. About the 6th ground of appeal, the learned Counsel asserted that the trial court was impartial (sic) against the appellant. He held such a view because the same Magistrate presided over the criminal case between the parties (/?v 16 Michael RamadhaniMhando in which She ordered whoever affected by the accident to be compensated through insurance. 4 By doing so, Mr. Linus argued, the trial Magistrate was impartial (sic) and biased because she was the one who sat in a criminal case involving the same parties and presided over this civil case. He cited the case of Joseph Shirima & Another v. Filbertha Kayombo, Civil Appeal No. 76 of 2022, Court of Appeal at Iringa. He concluded that the trial Magistrate was not supposed to preside over the civil case having heard a traffic case involving the same parties. Based on the strength of his submissions, Mr. Linus prayed the appeal to be allowed with costs. Conversely, Mr. Emmanuel Suiulu submitted that the1st respondent had a cause of action against the appellant because the 2nd respondent insisted that he was insured by the appellant. The 3rd party proceeding was not conducted because the 2nd respondent refused to join the appellant which was why the 1st respondent (then the plaintiff) prayed to join the appellant. On attendance, the appellant did not dispute the existence of an insurance contract between it and the 2nd respondent. Mr. Suiulu opined that it was proper for the plaintiff to join the appellant in the case. On the 4th ground of appeal, Mr. Suiulu refuted the allegation that the adverse inference principle is applicable in criminal cases only. To buttress his stance, he referred to the case of Hamadi Said v. Mohamed Mbiiu [1984] TLR 213 where that principle was applied. He prayed for the court to disregard Simon's case cited by the learned brother. Regarding the 5th and 8th grounds, the learned Advocate contended that it is not correct to assert that there was no proof of injury or damage suffered by the 1st respondent as it is evident that his left leg was amputated due to the accident. In his view, the principle of res ipsa loquitur, "things speak by themselves" was sufficient proof of the damage suffered by the 1st respondent. 5 He also refuted the appellant's allegation on the 6th ground of appeal that the trial Magistrate was impartial because Mr. Linus was involved in the trial of this case but he did not pray for the trial Magistrate to recuse herself. Therefore, Mr. Sululu considered the 6th ground of appeal to be an afterthought. The appellant did not also dispute his contractual relationship with the 2nd respondent so, according to Mr. Sululu, this appeal is baseless and he prayed for the court to dismiss it with costs. On his part, Mr. Samwel Ndanga submitted that since the traffic case was heard by the same trial Magistrate who heard this case later, she was conflicted about presiding over this matter as she knew it before. Concerning the issues framed by the court, Mr. Ndanga contended that they were not framed before the trial but the trial Magistrate framed them during the composition of the judgment. The learned Counsel added that the injuries suffered by the :1st respondent were not well proved in the trial court because the documents tendered were not read out after the admission. About joining the appellant, the gist was the trial court's order in Traffic Case No. 09 of 2020 in which the court ordered the appellant to compensate the 1st respondent. The insurance contract was hot admitted by the trial court but all oral evidence proved that there was an insurance contract between the appellant and the 2nd respondent. According to Mr. Ndanga, the trial court was correct to draw adverse inferences against the appellant because the 2nd respondent did not testify about the existence of an insurance contract. As the impartiality of the trial Magistrate was no fault of the parties, the Advocate prayed for the order of retrial of this case before a different Magistrate. By way of rejoinder, Mr. Linus maintained that there was ho contractual document tendered in the trial court. He opined that it was unnecessary to sue the appellant because the 2nd respondent could well compensate the 1st 6 respondent. As to why the impartiality issue: was not raised at the trial stage, Mr. Linus explained that the proceedings are clear about it, as well as the case law. Having considered the records in the case file, and submissions by the learned Advocates, the question for determination by this court is whether the appeal is meritorious or not. I find it prudent to start with the first ground of appeal in which the appellant complains that the trial court erred in law and fact by entertaining the suit where the 3rd defendant was wrongly joined. The basis of this complaint is how Bumaco Insurance Company Limited was impleaded into this case, initially, Bumaco was not a party to the case. It is on record that when the 1st respondent wrote a demand letter to the 2nd respondent, he indicated that the 2nd respondent's motor vehicle which caused the accident had no valid insurance. The 1st respondent's plaint filed in court on 08/02/2022 did not consist of the appellant among the defendants, and it showed in the 4th paragraph that the motor vehicle which was involved in the accident had no valid insurance. Later on, when the 1st respondent was permitted to amend the plaint, he specified in paragraph 10 that the said motor vehicle was insured by the appellant with interim Cover Note No. 536927. From the records, it is undisputed that it was the 1st respondent (then the plaintiff) who prayed for the court to add the appellant as the 3rd defendant. The procedure for joining a party to the suit is provided for under Order I, Rule 14 of the Civil Procedure Code (CPC) and the law is clear that first, joining a 3rd party to a case is the right of the defendant. Second, the person brought into the case in such a manner becomes a third: party and not a defendant. This was the position stated in the case of Sunion Genera! Enterprises & Building Contractors v. Hosein Dhawabu, Civil Appeal 7 No. 234 of 2020, Court of Appeal at Dar es Salaam. Order I, Rule 14 (1) of the CPC provides as follows: ’ 'Where in any suite defendant claims against any person not a party to the suit (hereinafter referred to as "the third party")- (a) any contribution or indemnity; or (b) any reliefor remedy relating to or connected with the subject matter of the suit and substantially the same as a relief or remedy claimed by the plaintiff, the defendant may apply to the court for leave topresent to the court a third-party notice." From the above, It is common ground that it is the defendant in a suit who may exercise the option to join any person as a third party and he may only do so where he claims from the third party for any contribution or indemnity. Before instituting third-party proceedings, the defendant should first seek leave of the court to do so and issue a notice. The procedure for conducting third-party proceedings was discussed in the case of Sunion Genera! Enterprises & Building Contractors v. Hosein Dhawabu (supra), that: "... after leave to present a third-party notice has been obtained, the third-party notice has to be served upon the third party. According to Order I rule 17 of the CPC, it is upon being served with the third-party notice, that the third party is required, if he wishes to dispute the plaintiff's claims in the suit against the defendant on whose behalf the third-party notice was issued or his own liability to the defendant, to present to the court a written statement of his defence. Service of the third-party notice to the third party is therefore crucial in the third-party procedure. * As already shown, in the instant appeal, it was the plaintiff who initiated the process of joining the appellant to the suit, not as a third party, but as the 3rd defendant. The proceedings of the trial court are silent if third-party 8 proceedings were conducted. On page 20 of th e typed proceedings of the trial court, the Advocate for the plaintiff addressed the court as follows: "Your honour, the matter is coming for mention before you following the failure of the mediation. Before we proceed with other orders, we pray to amend ourplaint so as tojoin a thirdparty, i. e., Bumaco Insurance who seems to be a necessary party in this matter..." The trial court granted the prayer and proceeded to issue a scheduling order. After the issuance of the said scheduling order, the record shows that the matter was adjourned, thereafter the plaintiff presented an amended plaint with the appellant as the 3rd defendant. There were numerous procedural issues involved in the manner the appellant was brought into this case. First, a third party is never joined through an amendment to the plaint. Second, a 3 rd party is never joined to the case because he is the defendant or a necessary party like the Attorney General under the Government Proceedings Act. And, as shown, it was not the plaintiff's obligation to join a 3rd party to the suit. It was until the appellant filed a written statement of defence that it refuted having an insurance contract with the 2nd respondent. In the circumstances, the question of whether or not the 2nd respondent had a right of indemnity against the appellant was not determined by the trial court which is why the point is still contentious up to the appellate stage. There was neither leave of the court sought and granted in joining the appellant nor was there a notice given as required by the law. Generally, the whole procedure for joining a third party to a suit was flouted hence, I concur with the Advocate for the appellant that the appellant was wrongly joined in the case at hand. I, therefore, find merit in the first ground of appeal and I allow it. The failure by the trial court to ascertain whether the 2nd respondent had a bona 9 fide claim of indemnification or contribution against the appellant led the trial court to misdirect itself when it erroneously treated the appellant as the defendant. The entire procedural infraction resulted in the wrong joining of the appellant to the suit. This is a fatal procedural irregularity which, under the circumstances of this case, prejudiced the appellant and vitiated the whole trial court proceedings. Given the finding I have reached above about the propriety of the trial court's proceedings, I do not need to address other grounds of appeal as doing so will not serve any useful purpose. As to the way forward, since I have found that there was non-compliance with the third-party procedure that vitiated the entire trial court's proceedings, I nullify the proceedings of the trial court, quash the judgment, and set aside the decree. I return the file to Igunga District Court for an expedited retrial of the suit by another Magistrate. I make no order as to costs since the irregularity was occasioned by the trial court. Order accordingly. i KADILU, MJ. JUDGE 30/07/2024 The judgment delivered in chamber on the 30th Day of July, 2024 in the presence of Mr. Amos Gahise, holding brief for Mr. Emmanuel Sululu, Advocate for the 1st respondent who was also in attendance. JUDGE 30/07/2024 io