tito komu another vs hamisi seifu 2006 tzhc 105 10 october 2006

IN THE HIGH CO UR T OF TAN Z A N IA AT DO DO M A (DC) CIVIL APPEAL NO. 6 OF 2006 (ORIGINATING FROM CIVIL CASE NO. 49 OF 2005 OF DODOM A DISTR IC T CO UR T OF DODO M A) 1. TITO K O M U I ................... AP P E L L A N T S 2. V A L E R IA N K A Z IM O T O „ Versus HAMISI S E I F U ............................. RE S P O N D E N T 8/9/2006 & 10/10/2006 JUDGMENT M ASANCHE, J.: The appellants, Tito Komu and Valerian Kazimoto, were j. , . . condemned to pay, as compensation, for injuries, made to a minor called Anuary flamisi. The child Anuary was knocked down by the first appellant, driving a car o f the second appellant, on 21/3/2005, at 12.00 noon, at a place called Nkhungu, in Dodoma Municipality. The child got critically injured. In Traffic Criminal Case No. 33/2005, after a plea o f guilty, the first defendant was sentenced accordingly. He was sentenced to a fine of Shs. 15,000/= on the first count o f reckless driving, or tw'o years imprisonment in default o f the fine. On the second count o f driving without a valid license, he was sentenced to a fine o f Shs. 10,000/= or 12 months imprisonment in default. He paid the fines. The Civil Case No. 49/2005 that was opened by the respondent, ended up in the said order o f payment o f Shs, 3 - Million, as a result o f the damages. The appellants appeal, substantially, is that the award o f Shs. 3,000,000/= has been on the “high side.” I have scrutinized the traffic case record and the District Court Civil Case. The facts that emerge are that the first appellant, actually, had no licence to drive the vehicle at all. And, he drove at a terrific speed. Anuary, the minor, was a pupil in standard II at a school called Nkuhungu Primary School. After the accident, the pupil got hospitalised for two days: My evaluation o f the evidence, both in the traffic case trial, and in the Civil Case hearing, is that both the sentences meted out in the traffic case and the damages awarded in the Civil Case, were patently inadequate. The evidence on recond shows that, as a result o f the accident, the pupil is suffering constant headace and his performance at school has gone down, as a result o f that accident. This, I think, is a fit case where an appellate couit, the way I am sitting, should interfere. I have, however, decided not to interfere with the sentences meted out in the traffic case. But, I am certainly interfering with the award o f damages. That, I can do. (see Davies v. Powell Duffryn Associated Collieries Ltd f 19421 1 All ER 657 pp 664, 665). A passage in that ease reads: ‘7/7 effect, the Court, before it interferes with an award o f damages, should be satisfied that the judge has acted on a wrong principle o f law or has misapprehended the facts, or has f o r these or other reasons made a wholly erroneous estimate o f the dam age suffered. It is not enough that there is a balance o f opinion or preference. The scale m ust go down heavily against the figure attacked i f the appellate court is to interfere, whether on the grounds o f excess or insufficiency. ” That passage is also quoted with approval by Lord Guest in Kassam v. Kampala Aerated Water Co Ltd [ 1965] 2 All L.R. 875, 878. The Court sitting on appeal ordinarily, true, does not interfere with decisions o f trial courts on damages. But, there are exceptions. The case o f Mint v. Lovell [1935] i.K.B. 354 has said this: that: '‘The Court o f Appeal will not reverse the decision o f the trial judge on the question o f the am ount o f dam ages unless it is satisfied either that the ju d g e acted on som e wrong principle o f law or that the am ount awarded was so extremely large or so very sm all as to m ake it an entirely erroneous estimate o f the damage. ” That passage is quoted w'ith approval in the case o f Bull v. Vazquez and another [1947] 1 All L.R. 334 3 3 6 - Asquith CJ. The m inor had asked for Shs. 10,085,400/= as damages for the injuries sustained. That was, or, is, reasonable. T he appeals by Tito Komu and Valerian Kazimoto are dismissed with costs. The award o f shs. 3,000,000/=, by the District Court, as damages arising from the accident, is set aside. Instead, the respondents are awarded Shs. 10,085,400/= as general damaaes. It is so ordered. a: | | W * W m S (J.E.C. M A S a N O H E ) ...... - \ ~ J**T>OMA. 10,h October 2006. Mr. Nyabiri for appellants - appellants - Present - Respondent - Present in person 4