MKOMBOZI JUDGMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CIVIL APPEAL NO. 9397 OF 2024 (Arising from Civil Case No. 08 of 2022 of Sengerema District Court) MKOMBOZI FISHING & MARINE TRANSPORT LIMITED…….…. APPELLANT VERSUS AUGUSTINE HAMILI NGELEJA (administrator of the Estate of the late RIZIKI HACHILI ALBINUS) ...……………....1ST RESPONDENT ARET NGUKA MAKORI………………….…………………………2ND RESPONDENT INSURANCE GROUP OF TANZANIA LIMITED…………..…...3RD RESPONDENT JUDGMENT 16th December, 2024 & 12th March, 2025 CHUMA, J. On 20/07/2019 a Motor Vehicle with registration No. T591 DMY had an accident at Nyamtelela Village within the Sengerema District of the Mwanza region. The said Motor Vehicle was owned by the appellant and at the time of the accident, it was driven by the 2nd respondent. In the said accident one RIZIKI HACHILI ALBINUS who was a passenger on a Motorcycle driven by Samwel Fabian died. The 2nd respondent was arraigned before Sengerema District Court charged inter alia with offence of causing the death of RIZIKI HACHILI ALBINUS (deceased) due to careless driving. He pleaded guilty to the charge and was sentenced to 1 pay a fine of Tshs. 50,000/= or serve five years in prison. The second respondent paid a fine and was sent free. Eventually, the 1st respondent the deceased’s husband petitioned for letters of administration of the estates of the deceased through Probate and Administration Cause No. 4 of 2022 before Kasenyi Primary Court. His appointment was effective from 20/7/2022. After his appointment, he filed Civil Case No. 8 of 2022 on 22/8/2022 against the appellant and the 2nd respondent herein before Sengerema District Court (trial Court) claiming for inter alia payment if Tshs. 70,000,000/= being specific damages and general damages at the tune of Tshs. 100,000,000/= as compensation resulting from the death of the deceased. The appellant filed a third-party notice against the third respondent an insurance company of her Motor Vehicle. The trial court found the Motor Vehicle of the appellant not ensure for the reason that the appellant never paid for insurance cover. The trial court also found the claimed specific damages not strictly proved by the 1st respondent but ordered the appellant and 2nd respondent to personally compensate the 1st defendant with Tshs. 50,000,000/= as general damages; to pay interest of 7% of the decretal sum from the date of judgment to the date of full payment as well as to pay costs of the suit. 2 That decision aggrieved the appellant he preferred this appeal with five grounds of appeal that; 1. That in view of Exhibit-D1 the learned trial Senior Resident Magistrate erred in holding that there was no valid insurance cover in respect of the Appellant’s motor vehicle with Registration T 591 DMY. 2. That the sum of Tshs. 50,000,000/= awarded to the Respondent was excessive and out of proportions. 3. That the learned trial Senior Resident Magistrate erred in entertaining the above-mentioned case which was time-barred. 4. That the judgment complained of is against the evidence on record. 5. That, there was a non-direction on the part pf the Learned trial Senior Resident Magistrate by her failure to make a finding that the appellant has no Locus standi. By consent parties argued by way of written submissions, Mr. Nasimire learned advocate submitted for the appellant while Mr. Erick Katemi represented the 1st respondent. The appeal proceeded ex parte against the 2nd respondent while the 3rd respondent never filed submissions. Mr. Nasimire consolidated the 1st and 4th grounds of appeal and submitted that Exhibit D1 is a cover note of the motor vehicle with registration No. T591 DMY for the period of 21/12/2018 and 20/12/2019. 3 The death of Rizika Hachili Albinus occurred on 20.7.2019 within the insurance cover. The trial court erred in its conclusion that the cover note was inoperative due to nonpayment. That, it was the Appellant’s case that she paid for the premium in full on the inception of Exhibit D1. That, in the case of Mary Lesha (Administrator of the Estate of the late Godfrey James Mashala) Vs. John Magadula and 2 others in Civil case no 13/2022 (unreported) it was held that; “it is established law that an insurance K is binding once the insurer issues a cover note even in the absence of the premium payment receipt unless proven otherwise by the insurer, the 3rd D’S witness, DW2 Grayson Eliesky, admitted that the cover note was a valid document and acknowledged that it is unusual for such a note to be issued without the premium being paid, the 3rd D’S did not provide sufficient evidence to prove that the premium was unpaid or that the cover note was invalid” He submitted further that, Exhibit D1 was issued by SEJ Insurance Brokers limited to the Appellant. That, according to the proceedings of the trial court dated 2/10/2023, the counsel for the third Respondent wanted to join SEJ Insurance Brokers as Co-defendant but the latter was not added. That, the appellant was not responsible for ensuring that SEJ Insurance Brokers remits the premium money to the 3rd Respondent. 4 That, according to Section 72 (1) of the Insurance Act, Cap 394 R.E 2002 provides as follows; “The broker shall be liable to a Tanzania Insurer for all premiums due by virtue of insurance effect at the instruction of the broker” That, DW2, Naomi Mussa Kiringo, admitted that the cover note, exhibit D1, was issued by the third Respondent; confirmed that SEJ Insurance Brokers is one of the brokers who work with the third Respondent; affirmed that insurance cover may not be issued without payment; and informed that SEJ Insurance Brokers had a tendency of late remittances of premium to the third Respondent. On the second ground of appeal, he submitted that, Tshs. 50,000,000/= awarded to the Respondent was excessive and out of proportion. That pain and anguish relied upon by the trial court was neither pleaded nor does it feature in the 1st Respondent’s evidence. That 1st Respondent had no proof that his late wife was earning a salary of Tshs. 100,000/= per month from the Roman Catholic Church. That, the principles of exercising discretional power in the award of general damages was ignored by the trial court. Reference was made to the case of Alfred Fundi Vs. Geled Mango and others, Civil Appeal No. 49 of 2017 (unreported). 5 On the third ground of appeal he submitted that, according to item 6 of Part 1 of the Law of Limitation Act, Cap 89 R.E 2019 set a time limit for a suit based on a tort to be 3 years from when the cause action arose. That, in this matter at hand, the cause of action arose on 20/07/2019 while the suit was filed on 22/08/2022 therefore the suit was late by 33 days. On the 5th ground of appeal, it was the submission of Mr. Nasimire that the 1st Respondent lacked locus standi to pursue the suit from which this appeal originates because claims in a suit subject of this appeal were not the deceased’s estates. That, the administrator or administrator of an estate has the duty of collecting properties of the deceased with the sole purpose of distributing them to the heirs. In the case of Fred David Katembo Vs. Judith David Katembo and others, PC Civil Appeal No 181 of 2020 (unreported) the court clarified what constitutes properties of the deceased. It said, “Further, I would like to clarify that, the deceased estates are the properties which the deceased has been holding before he had passed away. Those properties are the ones which are subject to distribution to the legal heirs.” That locus standi is a jurisdictional issue that can be raised at any stage in the proceedings. The deceased was a Christian hence primary 6 did not have jurisdiction to appoint the administrator of her estates. I was referred to the case of George Abdon Kilinga & 2 Others Vs. Joseph Riwa (PC) Civil Appeal No. 6 of 2023. That, since the primary court had no jurisdiction to appoint the 1st respondent therefore he lacks locus standi. Further reference regarding locus standi was made to the case of Registered Trustees of SOS Children Villages Tanzania versus Igenge Charles and others Civil Application No. 426/08 of 2018 (unreported). In response, Mr. Katemi submitted on the 1st and 4th grounds of appeal that, at the time of occurrence of the accident, the Motor vehicle had no valid insurance policy because for an insurance policy to become valid full premium payment must be made within seven days of the date of policy inception. That, according to Exhibit D2 the premium payment was made on 21/01/2020 while Exhibit D1 was issued on 21/12/2018. Since payment of a cover note was not paid within the prescribed time then the motor vehicle was not insured at the time of the accident. That, the case of Mary Lesha Vs. Marco John Magadula cited by the counsel for the appellant is distinguishable. On the second ground of Appeal, Mr. Katemi submitted that the trial court was right to award the first respondent general damages of Tshs. 7 50,000,000/=. That, the award of general damages at Tshs. 50,000,000/= as general damages were not excessive taking into the circumstances of the case as reasoned by the trial court. Mr. Katemi’s submission on the third ground of appeal was that, Section 9 (3) of the Law Reform (Fatal Accidents Miscellaneous Provisions) Act, Cap 310 R.E 2019. provides as follows; (3) No proceedings shall be maintainable in respect of cause of action in tort which by virtue of this section has survived against the estate of deceased person unless either; (a)n/a (b) Proceedings are taken in respect thereof not later than six months after his executor or administrator took out representation. According to paragraph 4 of the plaint, the plaintiff was appointed to administer the estates of the deceased on 20/07/2022 by Kasenyi Primary Court and the suit was filed on 22/08/2022 which is within six months after he took his office. On the fifth ground of appeal, he submitted that, according to Section 4(1) of the Law Reform (Fatal Accidents Miscellaneous Provisions) Act, Cap.310 R.E.2019 allows the claims to be instituted by either defendants or administrators of estates. That, the administrator of 8 estates is allowed to claim damages on behalf of the beneficiaries against any person who caused the death of the deceased. That, the appointment of the 1st respondent by Primary of Kasenyi has not been challenged and cannot be challenged in this forum. I have dispassionately considered the submissions of parties. The issue before this court is whether or not the appeal has merit. Starting with the 1st and 4th grounds of appeal the appellant is of the view that, based on evidence on record, the trial court erred in deciding that the Motor Vehicle involved in the accident had no insurance cover. The counsel for the 1st respondent insisted that the cover note was not effected by failure to pay for the same. One point is not in dispute that the 1st respondent through SEJ Insurance Brokers was given a Motor Vehicle Insurance Cover Note (Exhibit D1) which was endorsed by the said broker. According to that exhibit, the premium amount was paid. It partly reads; “Whereas the policy holder described in the sticker above having proposed for insurance for motor Vehicle described in the Certificate and having paid the sum of 472,000/= as premium, the vehicle/s is/are hereby covered in terms of the company’s usual form of Third- Party policy applicable thereto for the period specified…” 9 It was also the evidence of the 3rd respondent that they work with the said insurance broker, the broker had the authority to issue the cover note, and if the customer pays the premium to the broker, it is the duty of that broker to remit the money to them and that the broker is not allowed to issue cover note without payment. DW1 Naomi Musa Kiringo testified at page 51 that; “This cover note seems to be issued by SEJ who is broker. I know SEJI is among of the broker we do business with him. Yes, broker is allowed to issue cover note to them. If customer pays premium to the broker, broker is the one supposed to pay money or send money to the Insurance company. If the broker failed to submit a premium to the insurance company, the broker is liable. IGP (sic) is not issue cover note without payment. We are not allowing broker to issue cover note without payment. I do not hear IGP (sic) loaned Insurance to the customer in all time I work…SEJ as our broker had a tendency of delayed payment of the customers. When I said Mkombozi and SEJ are supposed to pay I mean Mkombozi pay to SEJ broker but SEJ did not send money to IGT” Therefore, I am satisfied that the 1st respondent paid a premium to the broker. Whether payment was not made or delayed to reach the 2nd it was the mistake committed by the said broker, not the 1st respondent. 10 It was also confirmed by DW2 that they know the said broker and they are doing business with him. The 1st respondent is therefore not liable for the mistake committed by the 2nd respondent's broker and the latter is estopped to deny the act of his agent. A well-settled principle of law is that a Principal is liable to third parties for the act of his Agent. In the case of North Mara Gold Mine Limited V Emmanuel Mwita Magesa, Civil Appeal No. 271 of 2019 the Court of Appeal had the following to say; “…In the case of Machame Kaskazini Corporation Limited (Lambo Estate) v. Aikaeli Mbowe [1984] TLR 70 at page 73 we lucidly discussed the applicability of this universal principle when faced with analogous situation and borrowing passage from the case of Marsh v. Moores [1949] 2 KB 208 at 215 in which we took inspiration it was held: "It is well-settled law that a master is liable even for acts which he has not authorized provided they are so connected with the acts which he has authorized that they may rightly be regarded as modes, although improper modes, of doing them…” (emphasis added) I have also noted from the proceedings as pointed out by Mr. Nasimire that, the counsel for the 3rd respondent once on 02/10/2023 11 prayed to join the insurance broker but failed to do so. He is recorded to have said; “Mr. Victor Salala: the matter is for final Pre Trial- conference. However, Mr. Jackson Katabaro instruction is that, he pray(sic) for amendment of written statement of defense by (sic) join S.E.J Insurance Broker Limited for the reason that there were (sic) new information that S.E.J, Insurance broker limited issued insurance cover note after received (sic) payment from Mkombozi….the insurance agent is independent liable because he collected premium from 2nd defendant and he did not submit to the 3rd defendant.” In my view, the 3rd respondent would have rightly prayed to file a third-party notice against the insurance broker not to amend his Witten Statement of Defence (WSD). Otherwise, she was/is at liberty to file separate proceedings against his broker. Surprisingly the 3rd respondent on 6/10/2023 filed Amended WSD which does not implead the insurance broker but rather admits to the fact that the 1st respondent paid the said broker. Paragraph 4 of the amended WSD partly read; “That, the SEJ insurance Broker Limited collected the premium cover to ensure Motor Vehicle T591 DMY but never remitted the same to the third defendant…” 12 From this admission, therefore, the 3rd respondent cannot deny the fact that the appellant paid for the premium. It is settled that both parties and the court are bound by pleadings. In the case of Salim Said Mtomekela V Mohamed Abdallah Mohamed, Civil Appeal No. 149 of 2019 (unreported) the court of appeal at pages 5 and 6 had said; “In the bolded expression, it is glaring that since parties are bound by their pleadings, neither the parties nor the court can depart from such pleadings except where the court has granted leave to amend the requisite pleadings.” Therefore, I agree with the counsel for the appellant that the trial court failed to analyze the evidence on record concerning the Insurance Police of the appellant’s Motor Vehicle. The 1st and 4th issue is therefore answered in the affirmative. With regards to the second ground of appeal, the appellant is faulting the trial court to award Tshs. 50,000,000/= as general damages. That the trial court misdirected itself on exercising its discretional powers. That, the pain and anguish relied upon by the trial court was neither pleaded nor does it feature in the 1st Respondent’s evidence; and that the 1st Respondent had no proof that his late wife was earning a salary of Tshs. 100,000/= per month from the Roman Catholic Church. It should 13 be noted that, before an award of Tshs. 50,000,000/= The trial court had considered that the plaintiff being the deceased husband had lost a life companion, the children had lost their mother to whom they were depending and that the 1st respondent had spent some time to find redress from the appellant. The trial court said the following on page 12 of the judgment; “Indeed, one cannot definitely measure the anguish of a close member of the family in monetary value. However as stated earlier, the rationale is at least to as solitude for the anguish suffered. Thus the ultimate determination is to be viewed with objectively. In the case at hand, one cannot imagine the anguish and (sic) pain suffered by the plaintiff in losing his companion nor can it be ignored, the fact that the plaintiff has been seeking for such solitude in a long time now…I considering(sic) the fact that the deceased also left children who were depending her for everything in support of the plaintiff". I also disagree with the appellant’s counsel that the pain and anguish relied upon by the trial court were neither pleaded nor does it feature in the 1st Respondent’s evidence. Paragraph 11 of the plaint is to the effect that, the deceased’s three children who are all girls aged 17, 15, and 9 years old have lost comfort and support from their deceased mother. Paragraph 13 of the plaint further states that the plaintiff has 14 suffered stress, depression, mental anguish loss of companionship, and emotional trauma to the dependents. In his testimony, the 1st respondent also explained how he had suffered pain and anguish together with the children. He said on page 28; “After the death of my wife, I suffered psychological torture on how to take care of my children and lost advisor who was my wife, also I have suffered loneliness. Children lost motherhood from their deceased mother she was close to them…deceased played a big role in caring of children to upbringing (sic) in a good manner…before I institute this case, I spend about one year to make follow-up to Mkombozi an Makori but I get nothing.” The evidence of the 1st respondent was corroborated by PW2 and PW3 who are deceased children as well as the evidence of PW4 the deceased Sister. On the other part, DW1 and DW2 testified nothing to negate the evidence of the 1st respondent which forms the basis for award of general damages. Their evidence only focused on insurance premiums and who has the burden to pay compensation between the appellant and the 3rd respondent. 15 The law is settled that; the award of general damages is in the domain of the trial court which has a mandate to exercise its discretional powers to award general damages. In the case of Anthony Ngoo & Another Vs. Kitinda Kimaro, Civil Appeal No. 25 of 2014 (unreported), the court of appeal said inter alia that, “The law is settled that general damages are awarded by the trial judge after consideration and deliberation on the evidence on record able to justify the award. The judge has discretion in the award of general damages. However, the judge must assign a reason ….” It is another settled law that the appellate court may, with caution intervene with discretional powers of the trial court only when the latter failed to exercise its power judiciously. That is to say when the trial court has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong decision. In the case of Cooper Motor Corporation Ltd Vs. Moshi Arusha Occupational Health Services [1990] TLR 96, the Court of Appeal held in part as follows; “Before the appellant’s court can properly intervene, it must be satisfied either that the judge, in assessing the damages, 16 I applied a wrong principle of law (as taking into account some irrelevant factor 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 wholly erroneous estimate of damage.” Having considered the pleadings, evidence, and trial court judgment, I have settled in mind that, the trial court correctly exercised its discretional powers in award of general damages. I say so because the 1st respondent had unshaken testimony that the deceased husband have suffered great loss and the children have suffered too. I therefore find no justification to interfere with the trial court order in the award of general damages. The 2nd ground of appeal thus lacks merit. On the third ground of appeal, the appellant is questioning the trial court’s jurisdiction by entertaining a suit that was time-barred. I agree with the appellant’s counsel that a matter which is time-barred touches the jurisdiction of the court. I refer to the case of Muse Zongori Kisere V Richard Kisika Mugendi and 2 others, Civil Application no. 244/01 of 2019 (unreported). In this matter at hand Mr. Nasimire is of the view that the cause of action arose on 20/07/2019 while the suit was filed on 22/08/2022 therefore the suit was late by 33 days as it was supposed to be filed within 17 3 years. Mr. Katemi refutes this position and argues that the suit was timely filed according to section 9(3) of the Law Reform (Fatal Accidents Miscellaneous Provisions) Act which requires the matter to be filed not letter that 6 months of the date of appointment of executor or administrator. Since the plaintiff was appointed to administer the estates of the deceased on 20/07/2022 by Kasenyi Primary Court and the suit was filed on 22/08/2022 the matter was within 6 months. In this regard, I agree with Mr. Nasimire that, item 6 of Part 1 of the Law of Limitation Act, a suit found on tort needs to be filed within three years from the date when the cause of action arose in our case is 20/7/2019. However, Mr. Katemi is also correct in his position provided by specific law, Law Reform (Fatal Accidents Miscellaneous Provisions) Act (supra) which according to section 9(3)(b), a suit needs to be filed within six months of the date of appointment. In our case, those days are counted from 20/07/2022 when Kasenyi Primary Court appointed the 1st respondent. Further, the law under section 24(1) of the Law of Limitation Act sets the time limitation when the cause of action survived the deceased from the first anniversary of the date of death of the deceased or from the date when the right to sue accrues to the estate of the deceased, 18 (whichever is the later date). Subsection 2 of the same provision directs computation of the time limit from the date of appointment of legal representative or from the date when a right of action occurred whichever is later. It reads; (2) Where a person against whom, if he were living, a right of action would have accrued, dies before the right accrues, the period of limitation shall be computed from the date when there is a legal representative of the deceased against whom such proceeding may be instituted or from the date when the right of action accrues against the estate of the deceased, whichever date last occurs. Construing the Law of Limitation Act in harmony with the Law Reform (Fatal Accidents Miscellaneous Provisions) Act it is my conclusion that the suit before the trial court was timely filed because, counting from the first anniversary of the deceased that is 20/7/2020 the matter was timely filed within three years of the Law of Limitation Act on 22/8/2022. Also counting from the date of appointment which is 20/7/2022, the suit was timely filed according to section 24 (2) of the Law of Limitation Act and under section 9(3)(1) of the Law Reform (Fatal Accidents Miscellaneous Provisions) Act. The third ground of appeal thus is barren of fruits. 19 Lastly, the fifth ground of appeal need not detain me for long. Mr. Katemi was correct in his argument that the 1st respondent being an administrator of the estates of the deceased has a legal mandate to claim compensation in line with Section 4(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, which reads; 4(1) Every action brought under the provisions of this part shall be for the benefit of the dependents of the person whose death has been so caused and shall be brought either by and in the name of the executor or administrator of the person deceased or by and in the name or names of all or any of the defendants (if more than one) of the person deceased. The argument by Mr. Nasimire that the Kasenyi Primary Court had no jurisdiction to appoint the 1st respondent as an administrator of the deceased estate was misplaced because these proceedings are not the proper channel to question the appointment of an administrator. In the final result, the first ground of appeal has merit hence the appeal is partly allowed. The trial court erred in deciding that the Motor Vehicle with registration No. T591 DMY made TATA had no valid Insurance Cover. The third respondent, INSURANCE GROUP OF TANZANIA LIMITED, therefore, is responsible for paying the 1st 20 respondent compensation at the tune of Tshs. 50,000,000/= awarded by the trial court and other reliefs thereto. Having considered the outcome of this appeal I desist from making an order for costs. It is so ordered. Right of Appeal fully explained. DATED at MWANZA this 12th day of March 2025. W. M. CHUMA JUDGE 21 Judgment delivered in court in attendance of Mr. Nasimire and Katemi both advocates for the appellant and the 1st respondent respectively this 12th day of March, 2025. C. KISONGO DEPUTY REGISTRAR 22