20051213 TZHC Arusha

, I , IN THE HIGH COURT OF TANZANIA AT ARUSHA ' CIVIL APPEAL NO. 34 OF 2004 ' (C/F ARUSHA DISTRICT COURT CIVIL CASE No.:,21 OF 2002) /S.S. KOM~A - RM) ELI KANA ANTHONY . .. .. . .. . ... :. . . . ............·... APP,ELLANT Versus- ' YOHANA ANTHONY KIMUTO ... . ~ .... ■ II I I I ■ II I I I .~ RESPONDENT 13TH OCTOBER, & 13TH DECEMBER, 2005 l U D G E ME N T RUTAKANGWA, l. ' The Appellant was the Plaintiff in CivH Case No. 21 of 2002 of the Arusha Resident Magistrates' Court. The said suit 'tJaS duly filed on 2nd May, 2002. In his plaint the Appellant averred that he was, on 1ith October, 1999, violently assaulted by the Respondent herein who i~flicted cuts on his·, left arm with a panga. The Respondent was then prosecuted and was convicted of unlawful I ' wounding by the District of Arusha in criminal case no. 474/~002. The said I unlawful assault was alleged to have caused ,the appellant permanent disability. The appellant further averred in his plaint th~t following the said assault he was admitted at Mount Meru Government Hospita'! for two days and apart from that he "suffered considerable pain and was totally incapacitated to work for gain for ' a period of twelve (12) months. In para 8 6f his plaint, the appellant further pleaded that:- ' . I ff" ■ ,. 2 •~.during the period stated in paragraph 7 herein the I Plaintiff incurred expenses in terms oF medical care of his 1 Family as well as his Farms and indoor animals kept as a ! result the plaintiff suffered special damages in the sum oF I ' TShs. 680,000/='~ The Appellant was therefore claiming for the following reliefs:- ''{aJ Special damages as per paragraph B oFthe plaint; ! {b} General damages Fo~ physicalpain and suffering to be ' assessed by the court; @ General damages For Inconvenience and loss oFincome; {d} Costs oFthe suit; {e} Any other relieF{s} that this Honourable court may deem fit to grant'~ ' ' The Respondent, as Defendant, vigorously resisted these claims against him. He duly filed his Written Statement ofi Defence (W. S. D.). In his W. S. D. the Respondent partly admitted to have assaulted the Appellant, to have been ' charged with causing grievous harm but was subsequently convicted of unlawful wounding. He, however, denied causing the Appellant permanent disability. Regarding para 8 of the plaint, the Respondent responded as follows in his W.S.D.:- "6. The Defendant disputes_ the content oF paragraph B oF ., ' the plaint as no annexture f!as been attached to the Plaint i to support the claim as required by Order ;; Rule 14 {2} I CPC 1966 thus the Defendant is not aware oF it. The 1 Plaintiffis put to a strict proofthereof'~ After the mediation process had prove~ abortive, the suit was scheduled to be heard on 31st August, 2004. On this dat~ both parties were in attendance. I The trial court's record of proceedings shows very glaringly that on this first 3 hearing day the trial court failed to discharge its mandatory duty of framing and recording the issues in terms of Order XIV, rule 1 of the Civil Procedure Code 1966. This was necessary because the parties were at variance on some material propositions of fact. Instead, it immediately called upon the unrepresented Appellant, who for all intents and purposes (as I assessed him at the time of hearing this appeal) is ignorant of the laws of evidence and court procedures. That is why when called upon to adduce evidence he is on record as saying:- "I pray For ruling oF the court as I have no time to proceed with the hearing as everything is in written submission'~ I have found no such "written submission" on record. The Appellant has all the same denied telling so the trial court in this appeal. The similarly unrepresented and ignorant Respondent hastened to say that he had "no objection". Totally unperturbed by all this, the learned trial Resident Magistrate without making any efforts to enlighten the litigants on what they were supposed to do, hastily adjourned the matter for delivery of his "ruling" on 13.10.2004. The said ruling, but headed "Judgement'' was delivered on the said date. I have had the opportunity of dispassionately going through, the so called "judgement". Out of my desire of being modest, I will restrict myself to saying that the said Judgement is not a judgement contemplated under Order XX, rule 4 of the C.P.C. 1966. What the good trial magistrate did, was to reproduce the contents of all the parties' pleadings in a narrative form and reproducing Order VII, rule 14 in full. Thereafter he proceeded to reason as follows:- ''From the meaning oF the above quoted Order 7 rule 14 {i} and {ii} {sic) oF CPC 1966 it is clearly understood that the plaintiff's claim that during the period stated by the plaintiffthat he incurred expenses in terms oFmedical care oF his Farms and indoors {sic) animals kept as a result the plaintiff suffered special damages in the sum oF shs. .T - ..l- ') 4 . 684000/= was required to make strictprooF by providing I the documents to sh~w that he truly suffered those I expenses, no single do~ument attachedin a plaint {sic} to i support thae neither a list to show that documents in I support will be submitt~d at hearin~ in plaint filed. From i such a circumstance {sic} I hereby consider this issue as I ' baseless. Concerning the issues For the plaintiff to be paid general damages For phyficalpain and suffering and also to ' be paid For the genera/Ji: {sic} damages For inconvenience and loss oF income I atsJ consider at that Or.7 rule 14 {1} ' and {2} is applicable. I Order For everyone to bear his own cost. ' S. ls. KOMBA - RM ~3.10.2004" ' I This judgement, apart from failing to cont~in the points for oetermination (an omission which was the inevitable consequence of failure to frame issues) and I the decisions thereon, is, in my sincere opifiion and with all respects, difficult to comprehend. If the issue of special damagbs was "baseless" in terms of Order VII, rule 14 of the CPC 1966, what was the formal and conclusive adjudication of the trial court on it? For this claim was neither expressly dismissed nor allowed. I What had Order VII, rule 14 to do with the claim for general damages for physical pain, suffering, and inconvenience, iin View of the naked fact that the I Respondent was not disputing unlawfully \f\'.OUnding the Appe'llant and being convicted for the same, a conviction he never, challenged on appeal? I am alive to the legal requirement that special damages'ishould be specifically pleaded and ' strictly proved. Assuming, but not ruling absolutely, that the Appellant had failed to produce evidence, when required to do so, what the good magistrate ought to I , have done, was to hold that the Appellant had, failed to discharge his burden of 5' • I proof and thereafter proceeded to dismi,ss the claim. This he did not do but 'r , inappropriately sought refuge in Order V~I r.14 (1) of the Q.P.C. 1966. I have I used the word "inappropriately" deliberat~ly. This is because the provisions of i O.VII, r.14 (1) were improperly invoked here, as the AppellaQt was not suing on ', document in his possession or power. Al,I the same I unde~stand that medical expenses are a specie of special damag~s and if the App~llant had obtained I ' ' receipt for the same he ought to have ertered them in ,a list to be added or I . annexed to the plaint as is mandatorily req:uired under O.VII, r.14 (2) of the CPC 1966. But what is the penalty for failure to do so? As a by th~ way and for the benefit of the learned trial magistrate, I sh~uld hasten to add that the answer to this question is provided in Order VII, rule 18 (1) which says:- : l I i ' ' "18 - (1) A document which ought to be produced in court I by the plaintiff when theI plaint is presented, or to be I , entered in the list to be added or annexed to the plaint, and f which is not produced or;, entered accordingly, shall not, without the leave of the court, be received in evidence on l I his behalfat the hearing oF:the suit' (emphasis is mine). I The learned author, MULLA, in his comment~ry on the Code of Civil Procedure, Act, V of 1908 (India) says that:- " The object of rr.14 and 1,8 is to provide': against false documents being set up after the institution of a suit In I those cases, therefore, wh'ere there is no ', doubt of the I existence of a document at 'the date of the suit, the court j ' should, as a general rule, admit the document in evidence ! though it was not producedi, with the plaint or entered in I the list of documents annexed to the plaint as required by I r.14.. ,,,,. "On page 762 of Vol. I, 13th edtn. ' l' 6 • l , ' I All the same, if indeed the Appellant/ailed to adduce arw evidence, which I ' I he is now denying and I am inclined to agr¢e with him be~aus,e I have found no ~ ' t ' written submissions, the trial court ought tq have written a proper and reasoned j : judgement or ruling dismissing the suit for 'want of evidence to substantiate the 1 I ,' I Appellant's claims. It did not do so but: wrote a judgement which decided ·1 I nothing. None of the contested issues, going., by the pleadings, iwere conclusively 1 1 and finally decided. Nobody can confidenUy contend that thelsuit was decided either way. In short, that judgement is ihcomprehensible a~d amounts to a ·I I I traversity of justice and even without looking at the ground,s of appeal, it ought to be quashed and set aside. I accordingly 1110w this appeal by nullifying the so called J4.9g~Jii"ei7t -qf trial court on the sole g~ound of being incomprehensible. I ;_;,J- - - - -... \.,, J:' . . . . . . . . . I I I 0~9frihat the ··cas~be remitted to the trial dourt for trial in accbrdance with the ,'~i~at~/ \~,;it~1e~:f.Tt'1aws before another ~agistrate of co~p~tent jurisdiction . .· •., f ,»·. .· ,,..¥, \ t..r1 ' ., !ach ~ t«:t \ ~j£N s.h~'%fearj:if own costs in this appeal. , f,;i /., •,.· .... ,.,\it I..._ I ~ ~'.r;;~.·,.,;s:,)"''_.,.):/ ~ \' ~'- ,....._ ------- ...;,,'}~~.,~,,~· '• 0 / ,t"c .~ . 6 E.~A 'i I 18/10/200$ Date: 13/12/2005 Coram: S. A. Lila - DR For Appellant: - Present in person. For Respondent: - Absent. 8/c: Olivia. I 'i I I Order: Judgement delivered today in the pres; the Appellart in person and in the absence of the Respondent. ~ I s. -■ _, I I DISTRICT REGISTRAR I ARUSHA I 13/12/200SiI EMKR/jn. I I