kiluke vs kimwenge and another 2005 tzhc 61 15 november 2005

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO.130 OF 2003 (Appeal from original Civil Case No.34 of 2001 Temeke District court Dar es Salaam judgment of J.N. NZOTA- DM, dated 23rd April 2003) YUSUFU KILUKE APPELLANT V VERSUS KHAMIS KIMWENGE 1ST RESPONDENT PRAY A. LYAKANDI 2ND RESPONDENT MANENTO, JK: being damages the plaintiff and his family suffered after the death of the respondent, who owned motor vehicle No. MSE 683 Toyota pickup. The Kilwa road, at a place called Zakhem in Mbagala area. Hamisi Kimwege, the said driver was charged at Kinondoni District Court. He was acquitted after the court had ruled that there was no case to answer. The prosecution had called only one witness, the brother of the deceased who is now the appellant. This witness's role was only to identify the dead body of the deceased at Temeke hospital. Having filed the suit against the said drive and the 2nd respondent, for damages, the proceedings proceeded against the respondent only because the first defendant could not be traced. The suit was dismissed on the ground that the appellant had failed to prove that the 2nd respondent was the owner of the motor vehicle, despite of the fact that the respondent had admitted in his written statement of defence that he was the owner of the motor vehicle. The appellant was aggrieved by that decision, hence this appeal. The appellant filed three grounds of appeal as follows:- (1) That the trial magistrate erred in law and fact in dismissing the suit on the ground that the appellant failed to prove that the 2nd respondent was the true owner of the motor vehicle that caused accident while the available evidence proved so and the respondent in his defence admitted that he was the true owner. (2) That the learned trial magistrate misdirected himself in dealing with the issue of ownership which was not in dispute instead of dealing with the issue of compensation under which the respondent had previously promised to compensate the appellant for the damages caused. (3) That the trial magistrate erred in law and fact in saying that the evidence by the respondent put the appellant in a strict proof of the allegation contained in paragraphs 5 and 7 of the plaint. Both the appellant and the respondent appeared in person. Whereas the appellant repeated the contents of his memorandum of appeal, the respondent repeated the contents of the judgment of the trial court that he was not the owner of motor vehicle No. MSE 683 Toyota pick up. It is true from the judgment of the trial court that the dismissal of the suit centred on the issue of ownership of the motor vehicle which was alleged to have caused the accident. In his paragraph one of the 2nd page of the typed judgment, the trial magistrate had this to say: "Much as the plaintiff's evidence is concerned, his claim could be fruitful if only he could prove that the 2nd defendant is a real owner of the motor vehicle MSE 683 apart from only admission by the 2nd defendant in the written statement of defence in para 1. Although 2nd defendant admitted in this WSD but attested the court could have viewed the Reg. Card which on its face shows who owns that car or any other agreement made to show the 2nd defendant is a legal owner of the car in dispute connected in a claim .... " Going back to the grounds of appeal, I have to rule on the consequence of an admission of fact in issue. The appellant in his plaint stated that the respondent is the owner of motor vehicle No. MSE 683, which was involved into an accident. The 2nd respondent in his written statement of defence admitted the content of inter alias, paragraph No.3 of the plaint. That paragraph is worded as follows:- "The second defendant is the natural person, adult resident of Dar es Salaam and owner of the motor vehicle MSE 683 Toyota pickup involved in an accident ..... " Thus from the pleadings, the 2nd respondent on uncertain terms admitted to be the owner of the Toyota pick up No. MSE 683. Under order VII r.5 of the Civil Procedure Code, 1966, the defendant is required to specifically deny a fact raised in the plaint and failure to do so, it shall be taken to be admitted. But that is not the case in the case before the trial magistrate. The respondent had specifically admitted ownership of the said motor vehicle which was involved into the accident. The respondent knew under what circumstances he came into ownership of that motor vehicle, which ownership could either be constructive or direct. That fact was not to be proved by the appellant, because it was an information better known by the respondent himself. Therefore, the proviso to rule 5 of the Civil Procedure Code, 1966 was not available for application by the trial court. This brings me to the answer to the ground number one of the memorandum of appeal that the trial magistrate erred in both law and fact in dismissing the suit on the ground that the appellant failed to prove ownership of the motor vehicle in issue, a fact which was not in dispute. By dealing with a non issue, the trial magistrate failed to deal with the issues in regard to damages as claimed by the appellant. The issues whether the respondent was vicariously liable to the acts of his driver, whether the case was proved against the 1st respondent, driver, were then left unattended. Under the circumstances, what has this court to do? I ask that question because to allow an appeal will mean to allow a non existing judgment. I say a non existing because it is based on a non issue before it. Therefore then, I have to exercise my legal powers under Section 44( 1) (b) of the Magistrates' Court Act, 1984 which section empowers this court suo moto to revise proceedings before the district court or court of a resident magistrate. For ease of reference, the section is hereunder reproduced: 8.449(1) in addition to any other powers in that behalf conferred upon the High Court, the High Court:- (b) may, in any proceeding of a civil nature determined in a district court or a court of a resident magistrate, on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it sees fit." (emphasise supplied). It is true from what I have already stated that there has been an error material to the merits of the case involving injustice. The issues whether the respondents motor vehicle was negligently driven or not were not addressed to and many other issues relating to damages arising out of motor accidents. On those grounds therefore, I revise the whole proceedings before the trial court by quashing them and I hereby quash them together with the judgment therein, and order that the trial be conducted by another magistrate of competent jurisdiction de novo. Having done so, I find no good reason in ordering for costs to any of the parties. Thus, costs should lie where they fall. A.R~ For the Appellant - present For the 1st Respondent - Absent For the 2nd Respondent - present. ec: Livanga. Order: Judgment delivered today in the presence of the appellant and 2nd Respondent in person and in the absence of the 1st Respondent. S.A. Lila, DISTRICT REGISTRAR 15/11/05