20171207 TZHC Dar es Salaam

.( ... IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 141 OF 2016 JAMAL ABBAS SHEMWETA ................................................ lST APPELLANT NIKO INSURANCE {T) LTD ...•... ·........•............................ 2No APPELLANT VERSUS \ BAKARI YOHANA •• ■■ a••·························································RESPONDENT 15/09&07/12/2017 JUDGMENT MWANDAMBO, l:- Bakari Yohana, the Respondent successfully sued Jamal Abas Shemweta the first Respondent together with Muhimu Awadhi, the first Defendant before the Resident Magistrate's Court of Dar es Salaam at Kisutu in Civil Case No. 123 of 2008 in which a sum of Tshs. 50,000,000/= was awarded in favour of the Respondent. Aggrieved, the Appellants have ' appealed to this Court against that award. Before the trial court, the Respondent instituted a suit against Muhimu Awadhi and the 1st Appellant for several heads of damages for wrongful death of Chiva Yohana (the deceased}. The Respondent instituted . ~ the suit in his capacity as an Administrator of the estate of the deceased· whose death was admitted to have been caused by the negligence of the 1st Plaintiff (Muhimu Awadhi) in the course of his employment with the first Appellant. It is common ground that the suit was preferred pursuant to 1 ···~--:: :~~~-~-- ': _-·. '--~:-' ~-~-=:~ :.~~~--- _;:,·-··-~- . .,~ ~.;, ,.._ ... ·-· - ~ " : -. -··. ~. "' section 4 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act Cap. 310 [R.E 2002] and so the proceedings were to be governed under the said Act. The death of the deceased occurred as result of a road accident caused by a car driven by the first Defendant somewhere in Kwalaguru Chalinze along Segera -Tanga Road on 13 July, 2007. The car which caused the accident had been insured with the 2nd Appellant who was joined in the suit as a Third Party at the instance of the 1st Appellant. There being no dispute. against the Defendant's liability resulting into the death of the deceased, the trial confined itself to the damages payable to the Respondent for the benefit of the estate and dependents of the deceased. The Respondent claimed the following reliefs in his plain namely: (a) loss of dependence equivalent to Tshs 50,000,000/= (b) general damages to be assessed by the Court (c) interest on the decretal amount at the Court's rate till payment in full (d) costs of the suit. (e) any other relief (s) the Court deemed fit to grant Paragraph 18 of the plaint gave particulars of general damages to encompass; total loss of. support, loss of prospects, loss of bereavement, loss of companionship and affection, nervous stock, general loss of enjoyment of ttie amenities of life. At the end of the hearing, the trial Court found no evidence to prove special damages in the sum of. Tshs 50,000,000/= and so it disallowed that claim. Nothing was said of. the general damages but instead, the trial Court proceeded to make and award of the same amount of Tshs 50, 000, 0000/= on account of any other reliefs relying on Zuberi Augustino v Anicet Mugabe [1992] TLR 137 in •·•••--- .. ~ .. • I ••-. ,. , 0 •• .. 0 ,•• ,0,- ........... ..:. .:.:..;_ - _• •,,,.:. • ' ' . - 'I . ~ . -~· which the Court of Appeal endorsed an award of Tshs. 500,000/= for loss of use on account of any other reliefs upon failure by the Plaintiff to prove special damages. To the extent relevant to this appeal, the decree of the lower court runs in part: 11 ••• THIS COURT DOTH HEREBY ORDER THAT The judgment is entered in favour of the Plaintiff as follows: (a) (i) The Defendant jointly and severally to pay the sum ofTshs 50,000,000/==. (ii) That the :J'd party shall pay according per limit of insurance policy and the remaining be paid by the 27d Defendant. (b) The Defendants to pay the costs of the suit (c) The sum shall attract an interest at Court rate of 50% per annum from the date ofjudgment to that of full payment..... " Muhimu Awadhi who was the tort feasor against whom the trial court adjudged to pay the decretal sum jointly and severally with the 1st Appellants did not appeal against the judgment. The Appellants who are represented by Freddy Kandonga and Mudhihir Magee learned Advocates have preferred three grounds of appeal against the decision of the lower Court namely: 1. That the learned trial Magistrate erred in law and in fact by qwarding. damages to the Respondent despite of the failure by the Respondent. to prove special damages. 2. That, the learned trial Magistrate erred in law and fact in assessing the quantum of damages to excessive damages. 3. n1at the learned t1ial Magistrate in law and ·fad of jointly holding the 1st Appellant liable despite the fact that the 2'1d Appellant was joined as a third party to satisfy and liability that may be incurred by the 1st Appellant. Hearing of the appeal was by consent, conducted by way of written submissions whose merits will be considered. shortly. Messrs Fredy Kandonga and Mudhihir Magee file joint submission for the 1st and 2nd Respondent respectively. Mr. J.E.A Mwakajinga learned Advocate did alike for the Respondent as he did before the lower Court. Despite the fact that the learned Advocates argued ground one and two separately, the two grounds are interrelated and so I will deal with both of them together. The essence of the submissions by the learned Advocates for the Appellants in ground one was there was that the learned trial Magistrate strayed into an error by awarding the Respondent a sum of Tshs 50,000,000/= which he failed to prove under the head special damages and yet the same amount was awarded under any other reliefs. The learned Advocates argued that the learned trial Magistrate misapplied the principle in Zuberi Augustina V. Anicet Mugabe (supra) in which the Court of Appeal endorsed payment of a specified amount upon the Respondent failing to prove special damages. The learned Advocates criticized the learned trial Magistrate for making the award in favour of the Respondent based on reasonableness which was not a relevant factor in assessing special damages on the authority of NBC Holding Corporation V. Mrecha [2000]1EA. It was the learned Advocates' 4 __ ~-- ..,,.... - - . ·-'"- ~ -,. ---·........-. ...... ~ . - ,.._, ____ - - ..... - ,--_ ,.__ - - -- - - . . . . ·~ . - -- __ ·;. -·-, ... ··-----·-- -· ··--· - - ~ ~ - ~ - - - ' - - - - " - - ~ - - , ; . _ ~ - - - - - ' - - ' " - - - - - ' - " - ' - . .- - ~~ - ---:-:.-.--·::.-;-;:-.. -=~-~-- --·-. .;.: ~ - - = -.· - - -~---:-- -· ~ submission that the learned trial Magistrate applied a wrong· principle in ·- awarding the Respondent Tshs 50,000,000/= which should have been awarded under the head special damages had he proved them on the required standard. The learned Advocates urged the Court to uphold the first ground . . The learned Advocates' submissions on ground two which appears to have been taken as an alternative to ground one was to the effect that in so far as the Respondent had claimed for general damages, it was incumbent for the trial court to approach the matter by assessing general damages instead of jumping to any other reliefs after the Respondent had failed to prove special damages. The learned Advocates premised their submission on the decision of this Court (Commercial Division) in Mufindi Paper Mills Limited V. Tanzania Electric Supply Co. Ltd, Commercial Case No. 104 of 2005 ( unreported) in which Massati,J ( as he then was) relied on Zuberi Augustino V. Anicet Mugabe. (supra) and awarded the Plaintiff USO 50,000 on account of any other reliefs upon her failure to prove specific damages because the Plaintiff had not prayed for general damages and hence the resort to any other reliefs. The learned Advocates submitted further that at any rate, had the amount been awarded as general damages, the same cannot stand because there was no basis for awarding that sum. Relying on Attorney General V. Roseleen Kombe, CAT Civil Appeal No. 80 of 2002 (unreported) the learned Advocates argued that in the absence of proof of income the deceased earned on the date of his death, an award of Tshs 50,000,000/= ' . as general damages woutd have no legs to stand on and indeed a very - --:------- -- - ·- :.-::.::::.::_- ··~-~~ .··--~" _::;-:-.~,;-·::~ ~ -~ ~ ~ - - -- '. ~-~-----·- ..... excessive award. The Court was thus invited to reduce that award to Tshs 10,000,000/= on the authority of Gervas Yustine V. Said Mohamed Ndeteleni, HC Civil Appeal No. 189 of 2004 (unreported), Stanbic Bank Tanzania Ltd V. Aber Crombie & Kent (T) Ltd, CAT Civil Appeal NO. 21 of 2011 (unreported) and The Cooper Motor Corporation Ltd. V Moshi/ Arusha Occupational Health Service [1990] TLR 96. Mr. Mwakajinga learned Advocate for the Respondent found nothing wrong in the trial Court's award. The learned Advocate defended the said award on the strength on his submissions made before the trial Court and added that the award was justified and were supported by the principle discussed in Attorney General V. Roseleen Kombe (supra). It was the learned Advocate's submission that based on the evidence that the deceased's income was Tshs. 400,000/= per month immediately before his death using the multiplier of 28 as the number of years before attaining a retirement age, the total amount payable to the estate would have been 99,238,948/= but the lower Court awarded 50,000,000/=. The learned Advocate urged the Court to enhance that figure dispute regardless of the fact that the Respondent did not appeal against the lower Court's award on the authority of Gervas Yusine V. Said Mohamed Ndetelemi (supra). Having examined the submissions, there is hardly any dispute that the approach taken by the learned trial Senior Resident Magistrate awarding Tshs 50,000,000/= in favour of the Respondent under any other reliefs was irregular and contrary to the dictates of the provisions of Cap 310 which governed the proceedings. It is not in dispute that the liability of the Defendants was not disputed and so the trial court's preoccupation was ~ ...•__.;____ "--•-- _ _ , _ ,_ _ ------ -·- ------;,,,, ... ~-- -•> '. ···-- ~---•-•·-···--·-··- --- - - - - - ~:_-_ :.:;~~--=;~ _;-;;~:. ~~;.:~-::;:_~ ~~~~t~"-=::~~~-=--~~-'. -· - ---- ·-:, :-::::-:.:.:.~:~ ... -=-:--~--·:-· -~--;-•• - - •-----· ..• ~ - ~ - .. J --- ·limited-the assessment of damages· and ·apportionment thereof to ·the· --- - ·· -- . dependants per section 4(2) of Cap 310. This trial court failed to do and so any award made in contravention of the law cannot stand. Unfortunately, the trial court approached the matter from a wrong premise after framing an issue which addressed liability· of the· Defeneants and ttie third Party . · which was no longer in dispute. Needless to say, despite the learned Advocates for the parties addressing the trial court on the salient provisions of Cap 310 citing authorities which provided legal guidance on the issue, the learned senior Resident Magistrate paid little or no regard to any of them. It is equally unfortunate that the learned Advocates for the Appellants in this appeal approached the issues without little regard to the law applicable to the trial and this explains why they focused their attention on the quantum of damages awarded asking this Court to reduce the same paying little or .no .regard to the law applicable. At any rate, as rightly submitted by the leaned Advocates for the Appellants, it is glaring that the learned trial Magistrate misapplied the rule in Zuberi Augustino V. Anicet Mugabe (supra). Whatever justifi~ation the learned· trial Magistrate had in mind, it defeats both common sense and logic that the trial court awarded the same amount which it found not awardable to the Respondent under the head of special damages and yet it could fit under any other reliefs. Mr. Mwakajinga appears to insinuate in his submissions that the Appellants' complaint is more technical rather than substantive. With respect I am unable to go along with him. It is glaring in Zuberi Augustino V. Anicet Mugabe (supra) that much as the Court of Appeal upheld Tshs 500,000/= for non-use of the vehicle which is the same - ~ -·~-----------, .. _, :-~·- E,-~~~·:---~~~~~--~4;,~~~~~~:::=~~-·. ·· -~---··amount claimed ·as special damages representing--costs··of-repair· which-was -- - -· - disallowed for lack of proof, the said court gave reasons why it allowed that amount under any other reliefs. One of the reasons was that the accident had resulted into the bus engine completely blown off and incapable of running. It is not in dispute that apart from adopting the :. .- . ~ guidance given by the Court of Appeal in the case r.elied upon, the learned trial Magistrate gave no reason why she considered an award she had disallowed under special damages would fit into any other reliefs head as she did. Indeed, failure to give reason for the decision was inconsistent with Order XX rule 4 of the CPC. As rightly submitted by the learned by the learned Advocates for the Appellants, it was not open for the learned Senior Resident Magistrate to have dealt with damages under general damages head and that would have afforded her opportunity to assess the appropriate amount payable based on established principles. It was obvious as indicated earlier, Attorney General V. Roseleen Kombe (supra) offered sufficient guidance ori the principles to be· followed in assessing damages from wrongful death. That decision ·was cited before the trial Magistrate but she said nothing about it. Mr Mwakajinga attempted to distinguish Attorney General V. Roseleen Kombe (supra) from the facts of the instant appeal on the ground that unlike in the said case, the income of the deceased in the said case was not known. Be it as it may, the learned trial Magistrate was bound to apply the relevant law in the light of the facts and evidence before her and arrive at a just decision in the absence of proof of income was not a justification for jettisoning the relevant law to the wind and 8 -··---·· . ··-··-- approaching the matter in the manner the trial· court did. For reasons· which will become apparent shortly I will not make any more comment on this lest I prejudice the proper determination of the matter in the manner to be expressed in due course. Suffice it to say that the two grounds are h~reby allowed albeit on reasons not entirely similar to · what ~the Appellants' Advocates canvassed in their submissions. That takes me to the consideration of what should be done in the circumstances. Having held that the trial court strayed into an error in not assessing general damages which it should have done based on the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act Cap. 310 R.E 2002, there will be nothing for this court to interfere in this appeal in the manner submitted by the learned Advocates for the Appellants as well as the Respondent's Advocate. I did not take the Respondent's Advocate serious inviting me to enhance the award in the absence of an appeal in that behalf. Otherwise, I will deal with the matter having regard to the guidance given in Attorney General V. Roseleen Kombe (supra). A similar issue arose in that case whereby the trial court was found to have failed to assess general damages according to law. The Court of Appeal found itself bound to remit the matter back to the trial judge for assessment of damages. However, the Appellant in that appeal had accepted to be ready to compensate the Respondent a sum of Tshs 200,000,000/= in lieu of the awarded amount of Tshs 300,000,000/=. In view of that, the said court found no reason to take that course of action. However, since it was obvious that the trial court had not apportioned damages to the dependants as required by section 4(2) of Cap 310, it 9 - . ·- .• - - - - · ~ · · - ~ . .-.._.. '+ ,- _, . . . -· ~ - - - · - · - ....,·-------·------~.--·•-.:...::;-- - .. ~-=:=:=~- _.. _.... --~-~-- - -_. --- ···-..· · --~ . . - -- -- - -- --····· •·· ---3.-..- - remitted the matter to the trial judge for apportionment of the amount awarded among the dependants. The position in the instant appeal is as shown, the trial court made no assessment of damages according to the law applicable neither did it apportion the award of Tshs 50,000,000/--: it made under any other reliefs head- which I have already held to have been wrong. Although the Appellants have indicated to be ready to pay the Respondent a sum of Tshs 10, 000, 0000/= that amount has not been accepted by the Respondents. In the circumstances, I find myself constrained to remit the record to the trial Magistrate to assess damages according the dictates of Cap 310 and proceed to apportion the damages as mandated by section 4(2) of Cap 310. I will now turn my attention to ground three. Notwithstanding my determination on the first two grounds, I find compelled to discuss ground three in view of the confusion apparent in the judgment and decree. The learned Advocates for the Appellants criticized the tearned trial Magistrate for apportioning the liability against the Defendants in the main suit and the Third Party (2 nd Appellant) without regard to the fact that the 1st Appellant had preferred a third party notice with a view to seeking indemnity from the 2nd Appellant for any liability arising from the judgment of the lower Court. The learned Advocates argued that the apportionment of liability was contrary to the spirit of a third party notice and the provisions of the Motor Vehicles Insurance Act, Cap. 169 [R.E.2002]. On the basis of the foregoing, the learned Advocates urged the Court to allow the appeal and quash the proceedings and judgment of the trial Court. Mr. Mwakajinga made no submission on this 10 ·•- ·--· ___ . . -· • . , ~- -- _---.._-:=- ~ '--"'::!'"- . -•••es• .-----,--,----.._•._--~ --•> --~-•- -•-- •- " ground and I think rightly so because the Respondent's recourse was against the Defendants before the lower court which was distinct and separate from the 1st Appellant's right against the Third Party. Admittedly, the trial court does not appear to have given directions as to the manner in which the liability of the Third Party was to be tried as . . ., required by Order I rule 18 of the CPC. This is more so because, if I may be tempted to guess, instead of the Third Party (2nd Appellant) presenting its defence to the third party notice denying liability to the 1st Appellant at whose instance the third party notice was ordered, it filed a written statement of defence to the plaint which had nothing to do with its liability to the 1st Appellant who had sought indemnity from it under the insurance covering third party claims. The problem was compounded by the trial court framing issues which combined the Third Party's liability with th at of the Defendants towards the Plaintiff. Be it as it may, it having regard to the fact that Appellant did not deny its liability to the Respondent and taking into account the essence of the third party notice, it was incumbent upon the trial court to have entered judgment in favour of the 1st Appellant against the Third Party pursuant to Order I rule 19(1) (b) of the CPC. That would not only accord with the purpose of a third party notice but also the spirit and letter of the law under the Motor Vehicles Insurance Act as rightly submitted by the learned advocates for the Appellants. Consequently, any award should have been made against the 2nd Appellant to the extent of the liability against the 1st Appellant to the Respondent. Ground three is accordingly allowed. . __ . ..,,_' . ~·-~ ... - -- ---- . · In the event and for the foregoing-reasons;the-appeal-is-allowed and --- ---- the judgment and decree of the trial court is set aside to the extent it awarded the Respondent a sum of TShs 50,000,000/= payable in the manner indicated in the decree. Having so held, the record is remitted to . the trial! court for assessment and· apportionment of damages according to -· law before the same Magistrate. Since the case has taken very long to· be determined, it is directed that the assessment and apportionment be done as soon as practicable. Since neither party is to blame for the trial court's error resulting into the order I have just made, there will be no order as to costs. It is accordingly ordered. JUDGE 07/12/2017 12