Civil Appeal 24912 of 2024 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF SUMBAWANGA AT SUMBAWANGA CIVIL APPEAL NO. 24912 OF 2024 (Originated from the decision ofthe District Court of Sumbawanga at Sumbawanga in Civil Case No. 02 of2023) MASUMBUKO HALESHE............................................................... APPELLANT VERSUS MOSES WILSON NDINASYO RESPONDENT 10th & 18t February, 2025 * MRISHA, J. J Before the District Court of Sumbawanga at Sumbawanga henceforth the trial court, the res sue' e appellant claiming Tshs. 42,000,000/= as medical expenses incurred by the former in an accident caused by the latter who caused the same through recklessly and negligent driving thus making the respondent to sustain body injuries, Tshs. 100,000,000/= as general damage and Tshs. 100,000,000/= as punitive damages at the interest of 7% from the date of judgment up to the date of full satisfaction. In addition to the above, the respondent pressed for costs of the suit. 1 The appellant admitted to have caused an accident which resulted to some injuries on the part of the respondent. However, he strongly disputed the figures claimed by the appellant and the allegation that the respondent also sustained a hip problem following the accident caused by him. Upon hearing the evidence from both parties, the trial court found that the respondent had proved his case against the appellant to the required dard, and disposed of the case in favour of the respondent. However, for the reasons known to the tria nting the prayers sought by the respondent in d , the he adjudged the appellant to pay the respondent 0, s medical, meal and accommodation expenses the responde ad d in search for his health problem treatment is t in a foreign Mbara Hospital at Zambia. And, i ages, the trial court ordered the appellant to pa e respo nt . 20,000,000/= at the interest rate of 7% from the date of e judgment to the time of full satisfaction, and finally, the appellant was ordered to pay costs of the suit. Following such decision, the appellant was totally aggrieved and decided to challenge the same by filing with this court a memorandum of appeal which is composed of the following grounds of grievance: - 2 1. That, the trial court erroneously (sic) contravened the principle of natural justice by being bias to, and denying the appellant a proper and fair hearing hence renders its entire proceedings, judgment and orders vitiated and nullity. 2. That, (sic) trial court erred in law for taking and/or recording the evidence of the witness in contravention of rovisions of Order XVIII, Rule 5 of the Civil Procedure Cod .E 2019] hence renders its proceedings a nullity. 3. That, (sic) trial court erred in or e t aluate properly the evidence adduced by parties ce rong decision. Based on the above compl for the judgement and the following orders that: ap eal all ed, (2) the judgment, orders and proceedi ou shed and set aside for being nullity and, (3 so pr ed for by the respondent. The ondent th er side, strongly contested the above grounds of appeal a rayers filing his reply to the memorandum of appeal through which he has instead urged the court to upheld the decision of the trial court with costs; thus, necessitating the present appeal to be determined on merit. The manner in which the same was heard, was through written submissions following the consent of both parties and, the court ordered that the appellant’s written submission be filed on 02.12.2024, the respondent’s reply 3 on 16.12.2024 and the appellant’s rejoinder written submission if any, on 23.12.2024. Through the legal representations of Mr. Deogratius Phailod Sanga, learned advocate for the appellant, and Ms. Neema Charles, also learned advocate for the respondent, both parties complied to the scheduled court order by filing their respective written submissions on time. Hence, thi judgment. While I appreciate the great task played by each uns rt arties herein in the course of drafting those docu w , and finally have them filed with the court on tim the outset, that I will only pick some crucial poi co to ssing the grounds of appeal and considering th s in relation to the present appeal. Starting with oun of appeal, the appellant submitted that the trial court ave e principle of natural justice enshrined under Articl nited Republic of Tanzania Constitution, 1977 by being bia the appellant a proper and fair hearing, in two ways. First, by denying the appellant a right to cross examine the respondent as it is shown at page 68 of the trial court typed proceedings wherein it is shown that on 06.11.2023 when the appellant’s counsel was examining the respondent, the case was suddenly adjourned on the reason that the trial magistrate got 4 sick, then on 10.11.2023 when the hearing resumed, the magistrate adjourned the case alleging to have been sick. However, from then the trial magistrate never afforded the appellant’s counsel a chance to further cross examine the respondent and the rest of the respondent’s witnesses, thus violating the principle of natural justice by denying the appellant a right to fair hearing. It was the learned counsel’s submission that the above violation renders the proceedings of the trial court to be nullity. To bolster his argument, the learned counsel cited a number of cases including the case of Masanja Magishi and 3 Others vs Republic [2024] TZCA 1112 and Abbas Sherally and Another vs Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 33 of 2002 (unreported) in which it was emphatically stated that: A right to be heard is not only a cardinal principle of natural justice but also a fundamental right constitutionally guaranteed such that no decision should be left to stand in contravention of it, even if the same would be reached had the party been heard” Secondly, through the aid of his counsel, the appellant submitted that the trial magistrate acted with bias and unfairness against the appellant by denying DW1, Dr. Colman Shine @Laswai a right to fairly and freely give his testimonies in favour of the appellant. He also clarified that on 7th day of August, 2024 when DW1 was about testify on how he diagnosed the patient 5 who is the respondent, the trial magistrate restrained the said witness from testifying freely on some crucial facts which according to Mr. Sanga, were the base of the said witness’s testimony and would have helped the trial court to reach to a just and proper decision. It was therefore, the counsel’s argument that the act of the trial court limiting the appellant’s witness to testify on some crucial fac nd preventing him from giving his testimony freely based on his unte o bias and denial of the fair hearing which le rt of the appellant, thus causing the whole pro trial court to be a nullity. From the above complaint an ouns iterated his previous argument that since the tri l cou lat nciple of natural justice as indicated in the appel itten submission, then it was his appeal that the court be ple to roceedings of the trial court for the interest of ce. Subm in re the second ground, Mr. Sanga had it that the evidence e e case which is the subject of the present appeal, was recorded in contravention of the law which is Order XVIII, Rule 5 of the Civil Procedure Code [Cap 33 R.E. 2019] hereinafter referred as the CPC, which inter alia, requires that the evidence of each witness shall be taken not ordinarily in the form of question and answer but, in that of a narrative. 6 However, the learned counsel submitted that the proceedings of the civil case before the trial court, were taken in contravention of the position of the law cited above, together with the direction of the Court of Appeal in Mangalu Maduhu vs The Republic (Criminal Appeal No. 158 of 2022) [2024] TZCA 780 (21 August 2024) which despite emanating from a criminal case, provides the same position as stipulated under Order XVIII, Rul of the CPC as far as the manner of recording witnesses’ evidence is con ned. Giving examples of the alleged contraventi the referred the court to the evidence of PW1 at of DW1 at pages 70 to 71 of the trial court typed pro nd ed that the mode of recording the evidence of t trial magistrate specifically during cross examinati o ly violated the position of the law under Or as the same does not give the court a clear und was the story stated by the witnesses at the trial. Henc d this court to find merit in the second ground of appeal nullify the trial court’s proceedings. And, finally on e third ground of appeal, Mr. Sanga submitted that the requirement of the law is that the party who alleges a certain fact must prove its existence and the burden of proving such fact never shift to the adverse party even on the weakness of the opposite party’s evidence as it was stated 7 in the case of Geita Gold Mining vs Twalib Ismail and 3 Others, Civil Appeal No. 103 of 2019. Further to the above, the appellant’s counsel submitted that in determining any issue and or facts brought before it, the trial court is required to properly evaluate the evidence of all witnesses and in case it fails to do so, the appellate court may on appeal reevaluate the same and make its own findings. The case of Martha Wejja vs Atto nd other [1992] TLR 35 was cited to back up the ab In that connection, the learned advo^ that the trial court failed to properly evaluate the evidence of the witnesses who testified before it hence reached to a wrong and unjust decision due to a number of reasons. First, for failure to observe that the respondent who like any other party to the civil case is bound by his own pleadings, testified against what he had pleaded in the p espite pleading that after the accident he was medically treated at Sumbawanga Referral Hospital and Mbeya Zonal Referral Hospital which then referred him to Muhimbili Orthopaedic Institute upon failure to treat him, the respondent while giving his testimony before the trial court changed the story by stating that he was treated at Sumbawanga Referral Hospital, Doctor Atman Hospital, Kristu Mfalme and Ikonda Consolata Hospital, as it is shown at page 25 and 26 of the trial court typed proceedings. 8 That, also at page 26 of the said proceedings the respondent testified that after the accident and upon being medically treated, he was not found with a hip problem rather the medical check-up report revealed that he had only external body injuries and ankle problem and he was discharged on the same date. The counsel further submitted that the respondent’s claim of sustaining a hip problem is unmerited because it came after a lapse of six months; hence, it is their view that the said problem could have been caused by other probable causes and not the accident caused by the appellant. Also, the appellant’s counsel submitted that even the evidence of PW3 who was the respondent’s witness, depicts that upon being treated, the respondent was not found with any fracture and hip problem which is why he was discharged instead of being referred to another hospital. The second reason which according to the appellant’s counsel justifies the trial court’s failure to properly evaluate the evidence adduced by the witnesses, is that the evidence of DW1, Colman Shine @Laswai reveals that he was the one who treated the respondent and found him with no other problems than the injuries on his right leg and ankle and discharged him after treatment. That, also the respondent did not dispute the fact that it was DW1 who medically attended and treated him fully then discharged him, but despite all that, the respondent never called him as his witness. However, when the said 9 witness was called by the appellant, the respondent through his counsel, objected that witness to tell the court how he attended the respondent claiming he was going to disclose his patient’s confidential information without consent. Hence, it is the counsel’s view that had the evidence of such witness not being interrupted, it would have revealed the lies which the respondent told the trial court. He added that in his testimony, DW1 testified that he did not find the respondent with a hip problem that is why he did not refer him to Mbeya Referral Hospital for further medicatiojfc^^ Likewise, the appellant’s counsel submitted that even the evidence of the appellant (DW2) reveals that the alleged hip injuries sustained by the respondent, had never been caused the appellant through accident which involved him and the respondent because the ones sustained by the respondent which were leg, knee and ankle injuries were treated. It was thus, the prayer of the appellant’s counsel that this court be pleased to reevaluate the evidence on record and find merit in the present appeal on the basis that the respondent’s case was not proved to the required standard. Lastly, the appellant’s counsel urged the court to find merit in all grounds of appeal, allow the appeal with costs and nullify the proceedings, judgment and orders of the trial court for being nullity. 10 In response, Ms. Neema Charles submitted that in his submission, the appellant admitted to have caused accident which led the respondent to be hospitalized at Sumbawanga Regional Referral Hospital and also DW1 admitted during cross examination that people with hip problem include those who got accident. Regarding the first ground of appeal, the respondent’s sel submitted that the same lacks merit because the appellant en t cross examine the respondent and, on the issue swai, the trial court was fair for it gave that wit ly testify in court. She also submitted that the ica the respondent was issued to the appellant wit ut the se hich is contrary to section 41 (3) (n) and (4) o ical Dental nd Allied Health Professionals Act No. 11 of 20 exercise discretion in respect of the disclosure o n about client can make complaints under that The respo t's counsel also submitted that when that document was sought to be tendered by Dr. Coloman Shine @Laswai as an exhibit, the respondent’s counsel objected and the trial court sustained that objection because it contained some confidential information, and the appellant’s counsel did not exhaust all remedies available under the above cited Act and failed to comply 11 with the procedure of producing documents as per Order XI, Rule 12 of the CPC. As if that is not enough, the learned counsel submitted that as per the Code of Ethics and Conduct for the Public Service Tanzania, Part III, Regulation 4, a public servant shall not disclose secrecy and confidential or official information which has been availed while discharging his offici uties without due permission. Also, an employee shall continu secr and confidentiality of official information even a leavi th She further submitted that in the e instant appeal, it shows that the appellant’s wi veil mation of respondent without exhausting the re dies the above laws. Hence, based on those circumstanc not be said to have denied him a fair hearing en There ed he first ground lacks merit because the trial court fair unbiased during the hearing of the suit between the appellant the pondent and because of that, she urged the court to dismiss that ground of appeal. Regarding the adverse party’s submission in respect of the second ground of appeal, the respondent’s counsel submitted that the trial magistrate complied with the procedure of recording witnesses’ evidence as stipulated under Order XVIII, Rule 5 of the CPC by recording the same in a narrative form. 12 She also argued that the appellant’s counsel misconstrued the above provision of the law and added that the case of Mangalu Maduhu (supra) is distinguishable to the circumstances of the present case since the trial court records at pages 15, 36, 41, 68, 71, 73 and 74 of the electronic proceedings, clearly show that the evidence of PW1, PW2, PW3, DW1 and DW2 was recorded in accordance with the provisions of Order XVIII, Rule 5 of the CPC. Thus, based on the foregoing reasons, the respondent’s counsel submitted that the second ground of appeal also lacks merit. Hence, she urged the court to dismiss it too. In regards to the third ground, Ms. Neema Charles contended that the evidence adduced by the respondent was properly evaluated by the trial court. Hence, the trial court reached to a fair decision. She also submitted that her client had undergone some treatments at different hospitals in Tanzania, but could not recover until when he was hospitalized at Mbara General Hospital in Zambia which was able to replace his hip. In addition to that, the counsel submitted, the receipt of treatment costs was tendered to form part of the respondent’s evidence, but the appellant did not object it. The respondent’s counsel also disputed the argument that the respondent’s hip problem could have been caused not by the appellant’s act of causing accident, but by other causes arguing that the PF3 which shows that the respondent sustained a hip problem after the accident and, the typed 13 proceedings of a Traffic Case No. 49 of 2022 as well as the hip replacement receipt issued by Mbara General Hospital, were tendered before the trial court without being challenged by the appellant either through objection or during cross examination. To bolster her position, Ms. Neema Charles referred the court to the case of Issa Hassan Uki vs Republic, Criminal Appeal No. 129 of 2017 [2018] TZCA 361 (10 May 2018) in which it was stated that: "It is settled in this jurisdiction that failure to cross-examine a witness on a relevant matter ordinarily connotes acceptance of the veracity of the testimony” As for the complaint that the trial court failed to observe that the respondent testified contrary to what he had pleaded in the plaint, she submitted that the respondent did not contravene the law because in the amended plaint it is clearly shown that the respondent testified in accordance with what he pleaded in that plaint. Besides that, the respondent’s counsel submitted that during cross examination DW1 admitted that accident can cause a hip problem. Hence, she submitted that the appellant is intending to deprive the right of the respondent who is now disabled due to the accident caused by the appellant. In light of the foregoing reasons, the learned counsel submitted that the third ground of appeal should also be dismissed for lack of merit. 14 In rejoinder, the counsel for the appellant reiterated what he submitted in his submission in chief on behalf of his client, and proceeded to submitted that the accident caused by the appellant did not make the respondent to sustain hip problem because first, no medical report about the respondent’s treatment at Sumbawanga Referral Hospital was tendered before the trial court as an exhibit and, the respondent through his counsel objected its production in court meaning that such fact was not proved by the respondent. Secondly, the appellant’s counsel submitted that when PW3 was adducing his evidence before the trial court, he admitted to have filled the PF3 before investigating PW1 and sending him for X-ray check-up; hence, he did not know who attended PW1 for X-ray diagnosis. Nor did he know the results in that regard. Thirdly, the learned counsel submitted that the respondent’s counsel misguided herself and overlooked the truth of what transpired before the trial court because as per the proceedings of that court, it is obvious that the appellant was partly allowed to cross examine the respondent, thus failing to complete his cross examination. Fourthly, Mr. Sanga submitted that the trial court was bias against the appellant for it denied him to give his testimony through DW1 which was about to disclose the findings and contents of the medical report from the 15 hospital the respondent had been referred to for the injuries he sustained from the accident. He further submitted that failure of the respondent to call DW1, a doctor who attended and treated him, and his acts of objecting that witness from adducing his evidence about the findings on his checkup and, objecting the appellant’s prayer to file such report in the list of additi documents so as to tender it as an exhibit during trial, raises t which tells nothing, but an intent to deceive the court in o rt benefits the respondent is not entitled to. Regarding the issue of recordi quire the law, the learned counsel for the appellant j repe e submitted in his submission in chief and faulted the for her attempt to mislead the court becaus urt with any provisions of the law or case to ment and faulting the position of the law as state y the C eal in the case of Mangalu Maduhu (supra). In the premi the rned counsel prayed that this court be pleased to find merit in the secon ground of appeal. In addressing the third ground of appeal, he submitted further that the respondent’s counsel failed to contest the fact that the trial court failed to properly evaluate the witnesses’ evidence because first, despite the fact that the appellant does not dispute to have caused an accident, thus causing the 16 respondent to sustain some injuries like bruises on the right leg and ankle, the fact which he still disputes is the one alleging that the appellant also caused the respondent to sustain hip injuries. In addition to that, the appellant’s counsel submitted that no evidence was led by the respondent to prove that the appellant also caused him to sustain hip problem. He added that even the evidence of Dr. Elisha Fussi (P whom the records of the trial court depict that he tendered a PF3, ot prove the fact that the appellant caused the respond o sus Moreover, the appellant’s counsel hat the traffic case proceedings, PF3 and Re a Hospi were tendered and admitted before the trial co is en to prove that the respondent’s hip injuries which ca iscover after a period of six months from when the accident re d by the appellant, rather they might have been In co usion, th PP nt’s counsel submitted that had the trial court properly aluate e evidence adduced by the parties before it, it would have arrived at a different finding. Hence, he implored the court to find merit in the present appeal and accordingly nullify the proceedings, judgment and orders of the trial court with costs. From the submissions for and against the grounds of appeal as well as the impugned judgment of the trial court, it appears to me that there are three 17 complaints of which the appellants would want the court to find merit, allow the present appeal and nullify the proceedings, judgment and orders of the trial court with costs. Hence, to me, the main issue is whether the appeal at hand is meritorious. That being the case, I will address one ground after another in line with the said main issue for determination. On the first complaint, the trial court is blamed for bre ing the principles of natural justice by denying the appellant’s counse her examine the respondent and other witnesses, and is said to have undergo X-ray to ascertain th by the respondent, from testifying on the findings he xa g he respondent. In responding to such un for the respondent has submitted that the co was fai d unbiased for it abided to the principles of na ral appellant’s counsel a chance to cross exami ss but unfortunately she did not counter the a ment th .12.2023 and 18.12.2023 the appellant’s counsel was not affo an op unity to complete cross examining PW1, as it is shown at page 20 of the trial court electronic proceedings. The foregoing entails that the right of fair hearing as enshrined under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, was not adhered to by the trial court as rightly argued by the counsel for the appellant. 18 Again, regarding the complaint that when DW1 was about to unveil the findings he made after diagnosing PW1 (the respondent) through X-ray, the learned trial magistrate interrupted by preventing him to do so for what he alleged to be protection of patient’s confidential information, the counsel for the respondent has submitted that the trial court was right to do so because the testimony of that witness and the medical report wanted to tender as exhibit, contained some confidential information he had treated after the accident, but neither the appel t’s co th doctor obtained the consent of the respond ro su vidence. The respondent’s counsel has furt ed t the appellant’s counsel ought to have known tha DW1 p ic servant, had a duty of exercising discretion i sp of osure of confidential information as per section Medical Dental and Allied Health Professi Act 2 (the Medical Dental and Allied Health Professions Act ther with the Code of Ethics and Conduct for Public Service zania w ich prohibits a public servant from disclosing confidential information permission whether he is still in the employment or has left public service. Having gone through the provisions of section 41 (3) (n) and (4) of the Medical Dental and Allied Health Professions Act, I have observed that such law is inapplicable to the circumstances of the case at hand. This is because 19 the said provisions deal with the complaints made against a medical or dental practitioner who is alleged to have been unfit to practice as such. The foregoing provisions also direct that once a complaint of that kind is lodged with the Registrar of the Medical Council of Tanganyika (the Council) it shall be forwarded to the medical council for it to be inquired and determine. However, the records of the trial court do not show whether there was any complaint which had been lodged or was about to be lodged against DW1 which would have justified the findings of the trial court to restrain him from tendering the medical report about the respondent’s health condition and disclose its contents before the said court. Also, it is undisputed that all public servants are obliged to keep secret and confidential information which come to their knowledge in the course of serving their employer, save whether they have been authorised to do so. It should be recalled that the rivalry between the parties herein is inter alia, on the fact that the accident caused by the appellant made the appellant to also sustain a hip problem. Again, both parties are at one that it was DW1 and not PW2, who diagnosed the respondent through the X-ray. In the circumstances, it is certain that the outcomes and/or results of such diagnosis would have better been obtained from no one, but DW1, a doctor who checked the respondent after the alleged accident. Hence, I do not see any sufficient reasons as to why the respondent 20 and his counsel objected that witness to testify on the findings he made after undergoing X-ray to the respondent. Like the counsel for the appellant has argued, the disclosure of such findings through testimony and production of a medical report by DW1, would have made the trial court to ascertain the truth behind the extent of injuries the respondent had sustained following the road accident c d by the appellant. In addition to that, I since the contention bet pa was about a physical injury which is the subje the claims, and not any kind of infections on the rt e information which could have been disclosed b espondent, but would be beneficial to him ha bee from the leg and ankle injuries, he also sustained ip . Thus, based on the foregoing reasons, I fin un peal has merit. Turni ro it has been alleged that the trial court erred in law for recording ev ce of witnesses in contravention of the provisions of Order 5 of the CPC. Much has been said by the appellant’s counsel through his submission in chief on how erroneous the trial court recorded the testimonies of witnesses during trial and, on the other side, the counsel for the respondent has contended that nothing wrong was done by the trial court for it complied with the procedure stipulated under the above provision of the law. 21 The said provision requires that the evidence of each witness shall be taken down in writing, in the language of the court, by or in the presence and under the personal direction and superintendence of the judge or magistrate, not ordinarily in the form of question and answer, but in that of a narrative. Despite the submission of the respondent’s counsel that the trial court complied with the provisions of Order XVIII, Rule 5 of CPC and that to her opinion, the proper provision which regulate recording of s examination would be Rule 6 of Order XVIII, CPC, I am the s missed a point in her construction. I say so because looking at t pr II, CPC it is apparent that it covers the whole ness’s ing the answers to cross examination questio are also part of evidence. Hence, recording of su a narrative form which can be underst t nve y, Rule 6 of Order XVIII, CPC is qualified in the s se that q ion and answer may be recorded by the trial court whethe the ap lication of any party or in its own motion where it finds there is a speci son to do so. Reverting back to the case at hand, it is obvious that in the course of recording the respondent’s evidence during cross examination, the learned trial magistrate recorded the answers of the said witness in a way that would not make them properly understood by the appellate court on appeal, and 22 that is the basis of the appellant’s complaint through his counsel. For instance, at page 16 of the trial court electronic proceedings, the trial magistrate recorded thus: “It was on 9:00 am, I had no measurement, On the same date, Referral hospital, I went to Kristu Mfalme, I was treated, National health insurance Fund receipt, for other skills, On the next day I did improve, No directive from the doctor...” A The above excerption clearly depicts that the magistrate contravened the provisions of Order is a trite law that a proper recording of evide f the ceedings where the questions asked by the examining party are not taken down, should mandatorily be in the narrative form showing a full statement of the answer given by the witnes: question posed by the asking party, counsel or even the court. This will enable the appellate court upon appeal, to identify the soul of the questions put to the witness. (See: Mangalu Maduhu vs The Republic (supra). Similarly, since the learned trial magistrate omitted to do what the law requires him to do when recording the evidence of witnesses, thus vitiating the proceedings before the trial court, I am inclined to subscribe to the arguments of the appellant’s counsel and find merit in the second ground appeal as well. 23 Next for my determination, is whether the trial court failed to properly evaluate the evidence adduced by parties hence reached to a wrong decision. That is the third and last complaint which has also been disputed by the respondent through the aid of his counsel. The law is well established that on first appeal, the Court is entitled to subject the evidence on record to an exhaustive examination in order to determine whether the findings and conclusions reached by the trial Court should stand. (See: Peters v Sunday Post, 1958 E.A. 424 and Standard Chartered Bank Tanzania Limited vs National Oil Tanzania Limited & Another, Civil Appeal No. 98 of 2008 (CAT at Dar es Salaam, unreported). The counsel for the appellant has actually invited this court to re evaluate the evidence recorded by the trial court and I accept such invitation based on the principle of law I have just referred hereinabove. As indicated above, the respondent claimed against the appellant the medical expenses and general damages together with costs of the suit. In my view, the trial court could not arrive at the findings it made without first appreciating the principles of law regarding to special and general damages, so to say. My examination of the impugned judgment reveals pretty well that despite making his reasoning on the foregoing substantive matters, the learned trial magistrate never based his reasoning on any such principles, rather he subjected himself to the evidence adduced by parties before him. In the 24 circumstances, I wonder how he managed to arrive at the findings he made like for instance awarding the respondents specific damages to the tune of Tshs. 42,000,000/=. In relation to specific damages, it is a trite principle of law that where special damages are claimed, they must be proved in evidence. (See: Cooper Motors Corporation (T) Limited v Arusha International Conference Centre [1991] TLR 165 and Tanzania Electri ly Company Limited v Timber Enterprises Limited (CAT) Civil Appeal No. 26 of 2000 (unreported). Again, in the case of Lalago Cotton Ginnery and Oil Mills Company Limited vs Consolidated Holding Corporation, Civil Appeal No. 130 of 2005 (CAT at Dar es Salaam) the Court of Appeal observed that: "Since there was no evidence was tendered to prove special In the case at hand, it appears to me, from page 4-7 of the trial court typed judgment, that after missing the medical experts who could cure his alleged hip problem, the respondent travelled to Mbeya Referral Hospital, then proceeded all the way to Muhimbili Orthopaedic Hospital after failing to get solution at Ikonda Consolata Hospital where he also passed through. However, no documentary evidence was produced by him to show that he was found with a hip problem from any of those hospitals. 25 The only documentary evidence produced by him regarding expenses incurred, were the Train ticket worthing Tshs. 39,000/= for the journey he made from Dar es Salaam to Mbeya which was admitted as Exhibit P2, and Air ticket from Mbeya to Dar es Salaam whose cost appears to be Tshs. 332,000/=, which was admitted as Exhibit P3. It appears that at Dar es Salaam the respondent onnected with an Indian Doctor who after reading his X-ray pictur him t the treatment and accommodation for him at India wo osts /=. As a result, he decided to go back to S an empt to get some money from his employer, but in v to go to Mbara Hospital at Zambia. That is shown at page ourt typed judgment and, both parties had n o th facts in their respective written submissions. What e first time, the respondent was admitted and ra experts at the cost of 83,300/= equivalent to Tshs. 000/= an advance payment for the cost of hip replacement. That is shown a page 7 of the impugned judgment where also the respondent (PW1) appears to have testified that the said examination was followed by the results which revealed that his hips were damaged totally and he was supposed to undergo a huge operation, then he was told to return to that hospital before the end of 2023. 26 However, despite all those testimonies, no medical examination results or a letter from Mbara Hospital was tendered during trial to backup such averments. Nevertheless, at the same page, it shows that upon returning to Mbara Hospital on 06.03.2023, the respondent undergone a hip operation conducted by the white men specialists and it was successful. According to the respondent’s testimony the whole tment costed him 250,050 Zambian Kwacha equivalent to Tshs 30, show that he tendered the payment receipt iss by ich were admitted by the trial court as Exhibi P a on ord that apart from the said expenses, the respon nt i rre her o the tune of Kwacha 34324 equivalent to Tsh 4,20 00 fo transportation, food and accommodation and d the receipts in that respect, but unfortun e t is silent as to when and how the same w d an exhibits. Again, at page th id judgment it is shown that in the course of his testimon e respondent claimed to have spent Tshs. 2,512,296/= for private transport from Sumbawanga to Mbeya, then to return to Mbara Zambia, but he was not issued with the receipts for he used a private transport. From the above evidence, I can say that the only evidence which would have helped the respondent to prove the above claimed specific damages some of which have not been supported by documentary evidence, is the medical 27 examination report and the oral testimony of doctors/specialists who are said to have treated him. This is because going by the records of the trial court and the impugned judgment, it is the hip problem which is disputed by the parties herein. In the absence of such report and the rest from Sumbawanga Referral, Mbeya Referral, Ikonda Consolata and finally, Muhimbili O opaedic Hospitals, it becomes difficult to accept the respondent’s clai at h stain a hip problem due to accident caused by the ap nt, t awarded specific damages, as ordered by the tria This means, therefore that nt ge extent, to exercise his legal duty, as a claima of provi over the specific damages against the appellant, ired of hi under section 110 (1) (2) of the Evidence Act . 2 whi uires that any party who would want the co to his favour, to prove existence of a fact which he asse o have so, see: Maryam Charles Mbaga & Another vs Anna C es Mb a, Civil Appeal No. 4 of 2021(HCT [One stop Judicial Centre] at Temeke, unreported). The only specific damages which I would be persuaded to award the respondent, are those which were specifically proved by him before the trial court and, to be more specific; the same include the Train ticket worthing Tshs. 39,000/= for the journey he made from Dar es Salaam to Mbeya and Air 28 ticket from Mbeya to Dar es Salaam whose cost appears to be Tshs. 332,000/= all of which makes a total of Tshs. 371,000/=. Regarding the general damages, it is a principle of law that general damages are damages that the law will presume to be direct, natural or probable consequence of the act or omission complained of. (See: Tanzania Saruji Corporation vs African Marble Company Limited 4] T.L.R. 155. It is also instructive to note that, while a Judge or Mag ate discretion in awarding general damages, he is also by law t reasons in awarding such damages. (See: Ifr Mango and two Others, Civil Appeal No. 49 ep Guided by the above princi ic m bound to follow, I would like to say that I hav one e evi e of the parties to this appeal, the impugned ju the rival submissions of the learned counsel for b se at the facts that the appellant is the one who cause n accid made the respondent to sustain external body injuries at part from undergoing some treatment at Sumbawanga Referral Hospital, the respondent travelled to different places in a bid to get further treatments, have not been disputed by both parties. The only fact which was disputed by both of them and which I have already resolved above, was that apart from leg and ankle injuries, the appellant’s act of causing accident to the respondent, also made the latter to sustain a hip 29 problem. In the circumstances, it is probable that from all those struggles, the respondent suffered some general damages which inter alia might include meal, logistic, accommodation expenses and lack of capacity to do some productive activities for a certain period of time. Hence, I do not see any reason, whatsoever, to fault the findings of the learned trial magistrate who after assigning his reason it appears at page 20 of the trial court typed judgment, aw Tshs. 20,000,000/= as general damages at the e date of judgment up to its full satisfaction, he it. I, therefore, find merit in the third ground to th e Before I pen off, I tak ote t th submission in chief and particularly while ad e first second grounds of appeal, the counsel for the app re nullify the proceedings of the trial court f co irregularities, as indicated above. Howeve se of dealing with the third ground of appeal, he also invite to re evaluated the evidence adduced by parties before the court and make its own findings something which I have done as shown above, I will not opt for the first option, rather will opt for the second which entitles this court to make its own findings after re evaluating the evidence adduced by the parties during trial. 30 Having said so, I find and hold that the present appeal has merit and is partly allowed with costs to the extent explained above. Consequently, I set aside the order of the trial court regarding specific damages and in lief thereof, substitute the same for the order that the appellant should pay the respondent a total of Tshs. 371,000/=, save that other orders made by the trial court remain to be intact. Meanwhile, costs of this appeal and the court shall borne by the appellant. It is so ordered. DATED at SUMBAWANG of 025. HA 8.02.2025 Right peal is ined. A.A. MRISHA JUDGE 18.02.2025 31