20170907 TZHC Dar es Salaam 1

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 555 OF 2016 (Arising from Civil Appeal No. 10 of 2014) CENTURY INSURANCE COMPANY LIMITED ....... APPLICANT

VERSUS RASHID OMARY........................................ I sT RESPONDENT DIRECTOR PICK TRADING LTD ................. 2N° RESPONDENT

RULING MKASIMONGWA, J. This is an application by CENTURY INSURANCE COMPANY \ ;· LIMITED (Applicant) against RASHID OMARY and DIRECTOR PICK TRADING LTD (First and Second Respondent respectively) for leave to appeal to the Court of Appeal of Tanzania against the Judgment and Decree of this court in Civil Appeal No. 10 of 2014 dated 9 th August, 2016. The Application is brought under Section 6 ( 1) of the Appellate Jurisdiction Act (Cap. 141 R.E 2002) and Rule 45 (a) of the Court of Appeal Rules, 2009 (G.N No. 368/2009) and it is by way of Chamber _Summons supported by the Affidavit of KEPHAS SIMON MAYENJE. Records show that the 1st Respondent contested to the Application and he filed a Counter Affidavit to that effect. 1 'i' '\\ The court ordered that hearing of the Application proceeds by way of written submissions. The Applicant and the 1 st Respondent filed the submissions. Again the 2 nd Respondent did not file his submission. In his submission Mr. Justine A. Magafu, the learned advocate representing the Applicant stated that on the 13 th day of February, 2014 the applicant lodged in the High Court a Civil Appeal No. 10 of 2014 challenging the Judgment and Decree of the District Court of Temeke. He lost the appeal against the Respondents. Being aggrieved by the decision, the Applicant lodged a Notice of Appeal with the Court of Appeal of Tanzania and came to this court

with this application. In this like applications the applicant has to show that there is a point of law or that the matter raises a contentious 1 issue of law worth to be determined by the Court of Appeal and that l the Appeal has likelihood of success for there is merit in it being it factual or legal. He submitted that the matter that raises contentious issues of law is a fit one for further consideration by the Court of Appeal as it was held in the case of SAID RAMADHANI MNYANYI VS. ABDALLAH SALEHE (1996) TLR 74. The counsel added that existence of a point of law to be dealt with by the Court of Appeal is necessary for this Court to grant leave. This position was taken by the Court in the case of FRANCIS NGOWI AND COCA COLA KWANZA (T) LTD VS. GEOFREY LOMANYANI: MISC. CIVIL APPLICATION NO. 27 OF 2014 (High Court of Tanzania at Tanga (Unreported) and also SIMON KABA DANIEL VS. MWITA MARWA AND 11 OTHERS (1989) TLR 64. 2 Mr. Magafu went on submitting that in this application there are various points of law which have been averred in paragraph 7 (a), (b) and (c) of the Affidavit supporting the application. They are:- (a) That the Appellate Judge of the High Court erred in law and in fact in awarding the total amount of Tshs. 15,000,000/= which exceeds the amount awarded by the District Court of Temeke without any basis. (b) That the appellate Judge erred in law and in fact for

failure to interfere with and reduce the general damages of Tshs. 10,000,000/= awarded by the trial court due to the fact that had applied wrong principle of the law by leaving out of account some relevant factors. (c) That the amount awarded as general damages are so inordinately high that it must be a wholly erroneous estimate of the damages. Based on the submission made along with the authorities cited and the listed contentious issues Mr. Justine Magafu prays the court that it finds the application to have merits and the same be granted with costs. On the other hand 1n his submission the 1 st Respondent stated that the Applicant's submissions revolves the facts which have already been proven futile by the previous Court(s) proceedings hence this application is baseless and is meant to waste the precious time of the Court. The same is again a technique in delaying access to justice. He added that leave of the High Court to appeal to the Court of Appeal will only be granted where the 3 grounds of appeal raise issues of great importance or novel point of law or where the grounds show a prima facie or arguable appeal. In the application at hand the grounds of appeal are frivolous, vexatious and hypothetical. There are no concrete reasons for the application as the applicant has failed to raise very important point(s) which need for determination by the Court of Appeal

as required. As such the 1 st Respondent prays the court that this application be dismissed. The applicant filed a rejoinder to the 1st Respondent's submission. The rejoinder basically reiterates what was submitted in submission in chief. Upon considering the records and submissions made by the parties it is clear to me that the 1st Respondent first knocked the doors of Temeke District Court armed within a plaint in which he had a claim based on a tort of Negligence and sought for the following reliefs:- "(a) Compensation for injuries and pains sustained tuned to Tshs. 5,000,000/= (b)Special damages tuned to Tshs. 13,000,000/= (c) General damages tuned to Tshs. 7,000,000/= (d) Interest in the decretal sum at the rate of 30% from the date of filing this suit to the date of judgment (e) Interest at the court rate from the day of judgment to the day of full payment (f) Costs for this suit 4 (g) Any other relief this court may deem fit and just to grant." In the suit GENTURY INSURANCE CO. LTD (the Applicant in this application) was joined as a Third Party. After hearing the matter the court found the suit for the plaintiff against the Third Party. The latter was ordered to pay.

1. Special damage to the tune ofTshs. 3,000,000/= 2. General damages to the tune of Tshs. 10,000,000/= Being aggrieved by that decision of the trial court, the Third Party (Applicant in this matter) appealed to this court. The Appeal was not successful and the applicant now seeks leave of this court to appeal to the Court of Appeal. In order for the High Court to grant leave to appeal to the Court of Appeal as it was held in the cases cited by the Applicant (see above) it must be satisfied that there is point of law involved worth considering by the Court of Appeal. It follows therefore that the issue to be decided here 1s whether in the case at hand there is a point of law involved worth considering by the Court of Appeal. In answering the issue, the Applicant contended that this Court erred when it increased the sum awardable to the 1 st Respondent as special damage to Tshs. 15,000,000/= from the amount awarded by the District Court. The Applicant also complains that this Court erred in law when it failed to interfere with and reduce the general damages of Tshs. 10,000,000/= awarded by the trial court. The Applicant has not substantiated the allegation. I have considered the fact that it is in 5 • I the discretion of the court to grant general damages. Certainly since general damages are awardable at the discretion of the court is wrong pleading to set a quantum in the

pleading. In this matter the plaintiff set a quantum of the general damages at Tshs. 7,000,000/=. He was awarded with Tshs. 10,000,000/=. The issues which I think is worth considering by the Court of Appeal is where the plaintiff quantifies the general damages claimed, whether the court at its discretions can award general damages to the tune beyond what is pleaded? Whether the principle that one is bound by his or her pleading may apply in that a situation? Since, the Court of Appeal has to consider and decide on the above issue, it is my view that it is necessary that leave be granted. In that premises therefore, I grant this application. No order as to costs is made. Dated at Dar es Salaam this 7 th of September, 2017 E.J.

JUDGE 7/9/2017 6