20161129 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE NO 55 OF 2009 MAHIJA AMIRI SEBARUA ......................................... PLAINTIFF VERSUS THE ATTORNEY GENERAL. .................................... 1 sT DEFENDANT THE INSPECTOR GENERL OF POLICE (IGP) ............ 2No DEFENDANT MR. URASA .. ...... ■■ •••••••••••••••••••• ■■ ••••• ■■■ ••••••• ■■■ ••••••••• 3RD DEFENDANT JUDGMENT MKASIMONGWA, J. MAHIJA AMIR SEBARUA, (Plaintiff) sues the ATTORNEY GENERAL, INSPECTOR GENERAL OF POLICE and MR. URASA (First, Second and Third Defendant respectively) claiming for Tshs. 120,000,000/= and Tshs. 60,000,000/= being special and general damages, respectively for the bodily injuries caused upon being shot by a bullet negligently discharged by the Third defendant. The plaintiff alleges that on the 23 rd of August, 2006, the 3rd Defendant was, in the course of his employment as a police officer, at Kilosa National Microfinance Bank (NMB). He did negligently shot a bullet gun which consequently hit the plai~tiff's leg. The plaintiff was admitted in Kilosa District Hospital and later referred to Muhimbili National Hospital for 1 further treatment. From the incident she has suffered much hardship, permanent disabled and severe internal pains in the leg. The plaintiff therefore prays for judgment and decree as follows:- (a) Tshs. 120,000,000/= being total of special damages (b) Tshs. 60,000,000 General damages (c) Costs The defendants disputed to the suit and the following issues for determination were framed:- 1. Whether the 3rd Defendant did negligently shoot a bullet gun which consequently hit on the plaintiff's left leg. 2. Whether the 3rd Defendant shot the plaintiff in the course of his " employment. 3. Whether the 1st and 2nd Defendants are vicariously liable for the actions of the 3rd Defendant. 4. Whether the plaintiff suffered any damages 5. What reliefs are the parties entitled to. With a view to substantiating the case, the plaintiff called two witnesses apart from herself (MAHIJA AMIRI SEBARWA (PW.1). Those are . 1 TEKLA JOSEPH KAUGIRA (PW.2) and ABAS MOHAMED HAJI (PW.3). The plaintiff's evidence is as short as that all PW.1, PW.2 and PW.3 are Prison Officers (PW.2 but is now retired). On 23/8/2006 they were at Kilosa Prison where they were stationed. According to PW.3, on that date there was theft incident that took place at Kilosa National Microfinance Bank (NMB). The Police Officer who was guarding at the Bank was informed and did shot a bullet to force the thieves who were on the run to stop. 2 PW.1 and PW.2 were, on that material date and time, in the women wing of Kilosa prison with remand prisoners. According to PW.2, PW.1 was standing near the door. PW.1 told the court that while she was there in the prison she was hit on her left leg by a gun bullet which penetrated the prison's door, shot by the 3rd Defendant, a police officer who was guarding at the NMB - Kilosa Branch. She was hurt and taken to Kilosa District Hospital for treatment. PW.1 was then referred to Morogoro Hospital and again to MUHIMBILI ORTHOPAEDIC INSTITUTE (MOI) for further treatments as it is evidenced by the KILOSA DISTRICT HOSPITAL DISCHARGE CERTIFICATE and the MOI ADMISSION SHEET which were tendered and admitted in evidence marked as Exhibit P.1 (collectively). To date PW.1 is undergoing treatment at MOI as it is evidenced by the MOI PROGRESS MEDICAL REPORT FOR MS MAHIJA AMIRI and MEDICAL REPORT FOR COMPESATION CLAIM 2227 CPL MAHIJA AMIRI SEBARUA which were tendered and admitted in evidence marked Exhibit P.2 (collectively). The evidence given by PW.1 is also to the effect that later on after they had come home from the Hospital the 3rd Defendant visited her. The 3rd Defendant identified himself to PW.1 as being the one who shot the bullet which had injured the plaintiff. The 3rd Defendant did not tell her why he shot the bullet. She said the 3rd Defendant was negligent for he did not take any precaution before discharging the bullet. The plaintiff lastly told the court in evidence that one of the bullet's pellets in yet to be removed from the leg. She· now claims for compensation for the injuries sustained and prays the court for an order 3 that the defendants pays compensation to the tune of Tshs. 120,000,000/= and Tshs. 60,000,000/= being special general damages respecting. On being cross-examined PW.1 told the court that she was inside the prison when she was shot. The area however was for the public. The 3rd Defendant ought to have taken precaution before discharging the gun. He did not do so. He was negligent. PW.1 added that she was paid Tshs. 108,000/= in accordance with the existing laws. Again on being cross-examined PW.3 told the court that the plaintiff was shot by the 3rd Defendant. The later told him that he intended to hit thieves, but unfortunately the bullet hit the plaintiff. He stated the same when he was being re-examined by the plaintiffs advocate that the bullet got the plaintiff's by bad lack. On the other hand, the Defence case is made of the testimony of F.4218 CPL YOHANA (DW.1) a police officer stationed at Pangawe Police Station in Morogoro Region. He was first stationed at Kilosa Police station. On 23.8/2006, he was on duty guarding at Kilosa National Microfinance Bank (NMB) Branch. While was there at the Branch he saw the Bank Manager and other workers shouting to him (DW.1) "Afande Wezl Afande wezi hao'~ DW.1 saw four persons running away to the age. He blew a whistle so that they stop. The suspects did not stop and DW. l fired the gun in the air two times. Yet the thieves did not stop and got out of the Bank's gate. The witness (DW.1) decided to shoot one of them on his legs and it is when they stopped. He arrested and took them to the police 4 station them. DW.1 told the court that none of the bullets got into the thugs. DW.1 went on telling the court that the alleged thieves were about 30 meters away from where he was standing. He fired the firearm aiming at the thieves who were running towards where the prison is situated and not the plaintiff. Later in the evening DW.1 was informed that one of the bullets he had fired did hit and injure a prison officer who was inside the prison. He visited the injured officer and said sorry to her. The witness (DW.1) denied being negligent otherwise he could not have managed arresting the things. He prays the court to hold that he was not negligent. That is the whole evidence in this matter. Upon having considered it I find it is not disputed that the third Defendant is a police officer. On the material date, that is on 23/8/2006 the 3rd Defendant was on duty guarding at the NMB-Kilosa Branch. In the course of his employment and while he was there at the Bank, he fired three Bullets from the firearm he was in possession of. There is ample evidence to show that one of the bullets hit PW.1 who was inside Kilosa prison and sustained injuries. Under the law where a person does a wrong and does so in the course of his employment the employer becomes vicariously liable for the actions of his employer. In this matter, it is alleged that the 3rd Defendant (DW.1) whose names are YOHANA URASA MASSAWE was negligent when fired the arm. The issue to be decided is whether the 3rd Defendant did negligently shot a bullet gun which consequently hit the plaintiff's left leg. In the claim based on negligence there must be evidence that leads to prove the following, among others: One: Duty of care: It is a legal requirement 5 that, among others, a person should not harm another person; the person who is closely and directly affected by the acts of the former, that he ought to have them in contemplation as being so affected when he is directing his minds to the acts or omissions that are called for in question. Two: Breach of duty: The person (defendant) is said to have breached duty of care where he knowingly exposes the other (Plaintiff) to a substantial risk or loss. A person (defendant) also breaches duty of care where he fails to realize the substantial risk of loss to another (Plaintiff) which any reasonable man in the same situation would clearly have realized. Three: Direct cause (factual causation): The plaintiff has to prove that the particular defendant's acts or omission were the cause of the loss or damage he or she had sustained. Four: Harm: Apart for proving that there is breach of duty and the cause of some injury to the defendant the plaintiff has also to prove harm which may entitle him or her obtain damages for pecuniary or non-pecuniary injuries. In the case at hand, as afore said the 3rd did fire of firearm a bullet of which hit the plaintiff. The later was not in the vicinity of the 3rd defendant. She was inside a prison. The 3rd Defendant fired the gun in an attempt to arrest three persons who were running out from the Bank suspected of theft. He fired three bullets and one of them hit and injured the plaintiff. In such a situation, although the 3rd Defendant is still bound by the legal requirement to not harm a neighbour, I find the harm caused to the plaintiff by the 3rd Defendant was not reasonably foreseeable. Anyone in the position of the 3rd defendant could not expect under the circumstances of this case that the bullet he fired against the thieves could penetrate the prison's door and injure the 6 plaintiff. Even if one takes it by granted that there was a duty on the part to take care, the fact that the 3rd defendant did not knowingly expose the plaintiff to a substantial risk leads the court to find that it is not proved that the 3rd Defendant did breach the duty of care. Although the plaintiff was wounded or injured the injury cannot be attributed to the 3rd defendant's negligent act. This case in my view emanates from un-intentional acts of the 3rd Defendant. As PW.2 had said in evidence, it was by bad luck PW.1 was hit by the bullet. In view of the above I find this suit to have not been proved. As such the same is dismissed. Keeping in view that, it is the Government that was sued; I make no order as to costs. Dated at Dar es Salaam this 29th of November, 2016. E.J.~~a JUDGE 29/11/2016 7 Date: 29/11/2016 Coram: Mkasimongwa, J For Plaintiff: Absent For the Defendant: Mr. Benjamin Kashidye Mihayo (SA) Mr. Mihayo (S.A): My lord, I am for the Defendant. Mr. Ukwong'a, advocate for the plaintiff is within the court premises appearing before another judge. He was looking for someone to hold his brief. The matter is coming up for judgment. I am prepared. Court: Judgment is delivered in Chambers this 29th of November, 2016 in the presence of Mr. Mihayo (S/A) and in the absence of the plaintiff and/or her advocate. cS~ E. J. Mkasimofg;a JUDGE 29/11/2016 8 IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES.SALAAM CIVIL CASE NO. 55 OF 2009 MAHIJA AMIRI SEBARUA ......................................... PLAINTIFF VERSUS THE ATTORNEY GENERAL ..................................... 1ST DEFENDANT THE INSPECTOR GEN ERL OF POLICE (IGP) ......... 2ND DEFENDANT MR. URASA ............. ............................................ 3RD DEFENDANT DECREE WHEREAS: MAHIJA AMIR SEBARUA, (Plaintiff) sues the ATTORNEY GENERAL, INSPECTOR GENERAL OF POLICE and MR. URASA (First, Second ) and Third Defendant respectively) claiming for Tshs. 120,000,000/= and Tshs. 60,000,000/= being special and general damages, respectively, for the bodily injuries caused upon being shot by a bullet negligently discharged by the Third defendant. THIS SUIT COMING Before Masimongwa, J for Judgment delivered in Chambers this 29th of November, 2016 in the presence of Mr. Mihayo (State Attorney) and in the absence of the plaintiff and/or her advocate. THIS COURT DOTH HEREBY ORDER THAT: i I E. J. Mkasimongwa JUDGE