JUMA CHEREHANI final final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CIVIL APPEAL NO. 12633 OF 2024 (Arising from the decision (Decree and Judgment) of Kahama District Court dated 24th November, 2023 in Civil Case No. 7 of 2023, Hon. D.D. Msalilwa, SRM) BETWEEN JUMA CHEREHANI……………………………………………. APPELLANT VERSUS TEMI SWAGI………………………………….…….…….…1ST RESPODENT ROSEMARY NDING’HWA……….………………………2ND RESPONDENT NYANZALA NDING’HWA………………………..………3RD RESPONDENT MACHIA JAMES………………………..……..……….….4TH RESPONDENT SHOKI LUTEMA………………………..………………….5TH RESPONDENT MADUBA JERUMAN………………………………………6TH RESPONDENT NG’ONG’HO LIDA……………………………………..……7TH RESPODENT JUDGEMENT 19th August & 18th November, 2024. MASSAM, J.: Before the District Court of Kahama at Kahama (trial court) the appellant filed a suit against the respondents claiming the compensation at the tune of Tshs. 55,000,000/= being the costs of damages he sustained following the attacks done by the respondents. 1 The records reveal that on 5/6/2022 at 10:30 am, Buswangili Village the respondents assaulted the appellant by beating him on the different parts of his body contrary to the law. The appellant filed a case at Lunguya primary Court and after a full trial the 1st to 5th respondents were found guilty of the offence. They were convicted and sentenced to serve conditional discharge for six months. Thereafter, the appellant unsuccessfully filed a civil case at Kahama District Court claiming compensation against the respondents following the said assault claiming the amount of Tshs. 55,000,000/=. Dissatisfied with the decision of the trial court, the appellants have filed this appeal with four (4) grounds namely; 1. That the learned trial Magistrate erred in law and fact in treating the claimed Tshs. 55,000,000/- as specific damages while the record shows that it started general damages. 2. That having found the 1st, 2nd, 3rd, 4th and 5th respondent to have assaulted/attacked the appellant, the learned trial magistrate grossly erred in law not making them liable for compensation/ damages on the appellant. 2 3. That the leaned trial magistrate erred in law and in fact in not awarding damages to the appellant for a reason that the appellant failed to prove special damages. 4. That the learned trial erred in law and fact in exonerating the 6th and 7th respondent merely on reason that they were not charged in criminal case No. 266 of 2022 of Lunguya Primary Court while evidence on record reveals that they were properly identified at the scene. During the hearing of this appeal, Mr. Bakari Chubwa Muheza, learned counsel represented the appellant whilst the respondents were represented by Mr. Ernest Makene, learned counsel. On 19th August 2024 the parties urged the court to hear the appeal by way of written submission and the court granted their prayer for the schedules as follows, the appellant to file submission on 2/9/2024, reply on 16/9/2024, rejoinder on 23/9/2024 and the judgment on 27/9/2024. However, the respondents did not file their written submission on time and pray to this court to be extended time to file the same, and when filed the same he filed with PO which later on withdrawn it. Submitting in support of the appeal, Mr. Muheza submitted that on the first ground faulted the decision of the trial court to treat the claimed damage 3 of Tshs. 55,000,000/= as a specific damage while it was just a general damage as it was the main reasons for the appellant to be denied the awarded costs. He submitted further that, since the appellant said that he wanted the respondents to pay him the said amount cannot be said they were the specific damage. He was of the view that as the court has the power to grant the said damages, he prays for the same to be granted. As for the second ground of appeal, Mr. Muheza submitted that it was wrong for the trial court to deny the appellant the claimed damages as it has already proved by the primary Court that the respondents did assault the appellant. He argued that failure of the appellant to prove specific damages cannot bar him from being granted general damages. He referred this court to number of cases including the case of Vidoba Freight Co. Ltd v. Emirates Shipping Agencies (T) Ltd and Another, Civil Appeal No. 12 of 2019 (CAT at Dar es Salaam) (Tanzlii) where the court held that in award general damages, the court must provide the reasons to justify the award. Lastly, on the third ground of appeal, Mr. Muheza submitted that it was wrong for the trial court not to find the 6th and 7th respondents not liable for the offence since they were not charged in Criminal Case No. 266 of 2022 at Lunguya Primary Court. He submitted further that the said respondents were 4 not charged together with other respondents as they run away after the assault. Thus, the only reasons for not included in Criminal Case No. 266 of 2022 does not mean they were not involved in the assault. He referred this court to Section 4 (3) of the Criminal Procedure Act, Cap 20 R.E 2022 to support his argument that criminal charge cannot be first to precede a civil action. In the end, he prayed for the appeal to be allowed with costs and the decision of the trial court be reversed. In his reply to the appellant’s ground of appeal Mr. Makene for respondent stated that he has gone through the submission from the appellant advocate and found them lack of merit hence he prays the same to be dismissed with costs. In reply to the first and second grounds of appeal he stated that the word specific damages refer to economic losses that are easily quantifiable, such as medical bills and costs income. Again he submitted that para 3 of the plaint asserts that plaintiff claims and causes of action against defendant severally and jointly are for payment of total tshs 55.000,000/= being compensation for damage arising from assault /torture while the first relief in the plaint prays for an order for payment of tshs 55,000,000/= as a damage for wrongful assault. So in their side they asked 5 if the assertion in para 3 of the plaint and first relief in the plaint are claims and causes of action for specific damages. He referred Latin maxim ubi jus ibi remedium which means that where there is right there is remedy, so in order to get rights stored or claiming compensation or damage sustained person has to evidence the expenses or losses incurred as a result of damage this could include receipts, invoices, medical bills or pay slips as who alleges must proof as insisted in section 110 of the Evidence Act. Again, he said that appellant said that he was bitten by the respondent on 5th June 2022 while he was in the office of the chairman of Busulwangili village but the said chairman (DW1) Shikalilo Lunyirilka declines seeing him that date and place as the said date was weekend and the office was closed. Also he said that the appellant was required to specify the amount of Tshs 5,500,000/= was for which aspect transport, medication, treatment, food, or medical admission, none of them was specified to raise the said costs. Again, there is no detailed and medical confirmation that to be sure of the appellants health status after the said assault/torture. No where show that appellant received a treatment and a kind of such treatment got at Lunguya health center and Bugando hospital, failure of it, show that appellant did not substantiate the loss suffered on the alleged value of Tzs 55,000,000/=. 6 He cemented his submission with the case of Tanzania Saruji corporation v African Marbe Coy. Ltd [2004] TLR 155 where the court held that if the specific damages have not been specifically pleaded and proved, a claim for general damages cannot stand. Also the issue of jurisdiction was questionable as the appellant prayed the claim of tshs 55.000,000/= as damages for assault is general damage where the pecuniary value ,nature of the case and territorial limitation of the court the trial court was required to consider ,he cemented his submission with the case of Francis Andrew v Kamyn ndustries (T) Ltd {1986 }TLR 31 Bahati J where it was held that jurisdiction will be determined with reference to the subject matter pecuniary value and the local limits. So in this court appellant claim the said amount as the general damages so the said court had no pecuniary jurisdiction to hear and determine the matter so this matter was bad in law for failure to comply with the mandatory requirement of order VII Rule 1(1) of the CPC which require that in every plaint there should be the statement of the value of the subject matter of the suit for purposes of the jurisdiction and the court fees. Lastly in third ground he said that the principle of presumption of innocence is reflected on the constitution of URT Article 13(6)(b) that every person is proved to be innocent at any given time 7 until otherwise is proved before the court of law. So the 6th and 7th respondents cannot be associated with result of punishment resulting from criminal case No 266 of 2022 before lunguya primary court while they were not charged with the offence of grievous harm. So according to that he stated that the appellant grounds of appeal has no merit the same to be dismissed with costs. In rejoinder appellant submitted that the respondent labored in vain by stating that on 5th June 2022 was week end as in the court record there is no where show that appellant said that he went to report to the office of village chairman of Busulwangili.Also coming to the case of Tanzania Saruji corporation(supra ) which mentioned by respondent, it is his view that the said holding was just created by the trial magistrate as it was done by respondent to justify his wrong conclusion denying the appellant to be awarded damages. Lastly to the issue which raised that the suit contravene order V11 Rule 1(i) of the Civil Procedure Code Cap 33 R:E 2019 respondent has not told the court which court is vested with that power to entertain the suit at hand, failure to do so, it is his view that trial court was vested in that power to entertain the matter. Lastly, in ground no 3 the appellant said that he reiterates his submission in chief. 8 Having going through the submission made by the both counsels, this court has a duty now to determine the merit of the appeal. All the grounds of appeal will be determined jointly as they both referred to the same thing of whether the appellant did prove her claim at the trial court on the balance of probability as required by the law. It is a trite law that civil matter, the burden of proof is on the balance of probabilities. See Section 110 (1) and (2) and 111 of the Law of Evidence Act, Cap 6 R.E 2019. The same was held in the case of Godfrey Sayi vs. Anna Siame as Legal Representative of the late Mary Mndolwa, Civil Appeal No. 114 of 2012 (unreported) were the court said: - "It is similarly common knowledge that in civil proceedings, the party with legal burden also bears the evidential burden and the standard in each case is on a balance of probabilities." At this juncture I find it apposite to reproduce what was submitted at the trial court by the appellant to prove his claim of Tshs. 55,000,000/=. At page 15 of the proceedings the appellant said that “Ever since the incident occurred my health has been shaky at times, I happen to be unconsciousness, I’m not doing okay” he alleged further that he had been 9 given transfer from Lunguya Dispensary to Bugando Hospital in Mwanza Region. However, to prove his claim he tendered a judgment of Lunguya Primary Court where the respondents were convicted for assault. Nothing was submitted to prove that he sustained injuries or permanent disability worth the amount of Tshs. 55,000,000/= That being said, the plaintiff has not been able to prove on the balance of probability that he suffered loss due to the injuries inflicted on him as claimed by the respondents as he had no medical proof regarding the said injuries resulting from the assault as he said that he was taken to Lunguya health center and later on transferred to Bungado hospital but no invoices, medical bills or pay slips which brought to the court to prove that he deserves to be paid what he claimed. See Judge - in charge High Court at Arusha and the Attorney General vs. N.I.N Munuo Ng'uni [2004] T.L.R 44 Also appellant failed to proof that when he was assaulted by the respondent’s village chairman witnessed the same as when the said chairman testified to the court as DW1 denied to witness when appellant was assaulted by Respondent. Again, respondent in his reply to the appellant submission told this court that appellant failed to calculate the claimed amount of tshs 55,000,000/- was for which aspect as transport, medicine, 10 food or for treatment. Indeed, that is true as the appellant/plaintiff said nothing concerning the claimed amount of money that was of which aspect so this court is in support of respondent submission that appellant has failed to prove his case on a balance of probabilities as required by law. In view of the above, I find no merit in the appellant’s appeal. Consequently, I dismiss this appeal with no order for the costs. In regard of the nature of this case. DATED and DELIVERED at SHINYANGA this 18th day of November, 2024. R.B. Massam. JUDGE 11