20170929 TZHC Dar es Salaam 1

♦ .,.

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISRTY)

AT DAR ES SALAAM CIVIL APPEAL NO. 234 OF 2016 {Originating from Judgement and Decree of the Kinondoni District Court in respect of Civil Case No.29 of 2016 by Hon. I Kassailo/ RM) DEODATUS DEODATUS MREMI ...............................APPELLANT VERSUS .... .... \.. I -..:,•. .~ . : . " . ~~~ EVARISTA KISAKA .......................... ~ ...................... 1 sT RESPONDENT . . ND . · .· VICENT GODFREY ..............................................·.~ ..-,,,,,_ 2 . RESPONDENT,/. \, ". . , .-;:> ~ -~ ·r.,~.: ,. i l JUDGEMENT'· ... ' Date of the last Order 29h August 2017(_ ';•. Date ofJudgement 29h September, 201f:<.·,. SAMEJI R.K, l: . ·~ This Appeal raises an interesting· question· on vicarious liability on the employer and employee relationship in the event of an employee performing_ or doin·g an act outside the scope and parameters of his . .• .. .., . . . ,·· ~,- ' . '·. -":.c<~.., employm~ent. The_ plaintiff who is now the 1st respondent instituted a suit before Ki~ondoni District Court against the 1st defendant who is the 2nd respondent herein and the 2nd defendant, the appellant herein jointly and severally claiming for the following relief(s):- (a) An order that the defendants to pay a total sum of Tanzanian Shillings Thirty Six Million and Five Hundred Thousands onl½ {Tshs.3~50~000/ ) as general Civil Appeal No. 234 </( 2016 1 damages being compensation for the

injurie~ pain and suffering sustained by a plaintiff as a result of traffic accident caused by the defendant's negligence; {b) Interest at the Court's rate from the date of the A brief background of the suit as obtained from the record of the trial court is that, on 30th August 2013 at about 1700hrs PWl went to Ubungo Bus Terminal to board a bus to go to Moshi for her grandfather's burial ceremony. She failed to get a bus, (public Civil Appeal No. 234 of 2016 2 '. . ' transport) as it was already too late. She then found five people who asked her where she was going and she informed them that she is going to Moshi. The said people informed her that there is a motor vehicle (pick up single cabin) which will transport goods (Magazines) she was still on the ground she saw DWl carrying her bag, mobile phone and the brief case of PW2 and crossed to the other side of the road. Then later PWl and PW2 were taken to K.C.M.C Moshi for Civil Appeal No. 234 t~f 2016 3 " treatment. Following the said accident PWl decided to institute a suit against the DWl, .the driver and DW2, the owner of the motor vehicle. ( 1) That the Honourable trial Magistrate erred in law and facts in holding that the appellant is vicarious liable for the negligence act of the 1st and Z'd respondents Civil Appeul No. 234 of 2016 4 without considering the fact that the alleged act was not I authorized by the

appellant/ (2) That the Honourable trial Magistrate erred in law and fact in ordering the 1st respondent to be compensated facts by totally failing to consider the testimony of the appellant. At the hearing of this appeal, the appellant was under the services of Eugenia Valerian Minja and Leornard Manyama, the learned Counsel, Civil Appeal No. 234 of 2016 ~.KS,mej\J 5 while the 1st respondent was under the services of the Legal Aid by · the Legal and Human Rights Center and the 2nd respondent fended for himself. By consent of the parties, the Appeal was argued by way of written submissions. This was adequately done and I am grateful and (2) of the Transport Licensing Act of 1973. On the ;z7d respondent he said he is a driver duly employed by the appellant to drive the said motor vehicle. As for the 1st respondent he said on 3dh August 201~ the 1st respondent boarded the said motor vehicle from Civil Appeal No. 234 of 2016 + R . K Smn,j;.J 6 Dar es Salaam to Moshi as a passenger and upon arriving at Kisangara the said vehicle got an accident and 1st respondent sustained injuries. That on 21st March 2016 the 1st respondent filed a Civil Case No. 29 of 2016 against the Z'd respondent and the where it is indicated that:- " ... a master is not responsible for a wrongful act done by his servant unless done in the course of his employment. It is deemed to be done so, if it is either,

one, a wrongful act Civil Appeal No. 234 of 2016 7 authorized by his master ot; two., a wrongful and unlawful and unauthorized mode of doing some act authoriz~d by the master'~ As for the 2nd ground he argued that, pursuant to Section 10(1) (a) HC at page 3, where Hon. A Shangwa J held that:- " Whereas in law an employer an employer can be helcj liable for the civil wrongs of his employee committed in the course of Civil Appeal No. 234 tif 2016 8 employment he cannot be held liable for the criminal acts of his employee committed in the course of his employment' As for the 3rd ground of the Appeal, the Counsel for the appellant referred to Section 11 (7) of the Transport Licensing Act of 1973 and Regulation 4 (1) and (2) of the Transport Licensing$f1?oad Passenger j;.~ Vehicles) Regulations of 2007 and argued that for•;fl%\motor vehicle ~.. ~ to passenger it must be licensed by the Surfac:~~~£12 Mar~~~afisport Regulatory Authority (SUMATRA). He,;;t said, \th~j:ltlt~~respondent . \~~~~- 1 ,,,"¾ . \i~ if' boarded the vehicle which was ~~t--· lice'1ls~ t◊\,.:~rry passengers .,:;,~,f::;{:;~"'\_~'->c,,,,, "~,~• . contrary to the law and the appellant'»cann0t1:be &~ "~- ,._ field liable for the -Y ~,,_:~ ,,,«'.>;,~ ., . unlawful acts and any injur!~s em 9qatectJherefrom whatsoever. He ;,:('❖-~ ❖-.;, 0.."l,~ ' • · ' ,~:. .., ¾.--.......-· :-,."... also referred to a Legal Jatin

M~-~im'.;{e-?F».thrpid cause non orbiter I .--~*'· ~, action/ 'which me~.ms •. ,X.':,., ')Jflaima1it:,b/ · ❖-:,:, reason of his or her own ~l, ,.;•,.,...,,·~~ ~~' ~~◊ ",;. _:;_,., illegality cannot sll~~?f)J:/J..,£_Person cannot benefit out of his - --:~..,::~fit:.~ -~~~t"'-·- ·'_ or her illegal . ,.,.. ,.-~~- act.; _ ~- \>..,,_ '}~:-· . '~·-*"'·~, {}. . . ~ . }/-~ . . . -~~~.,;::~.·:~:::t~%:;.❖❖ -❖❖»~~"'½~ "~·.·. ·* On tm·e 4 ~ th a'&"\.~. th tl S \gr:ounds of the appeal, the Counsel argued that, ':.i~❖• st sincJ~the 1 re1pon'dent had committed unlawful act by boarding the 's:;'$,; •':.: -~◊-'.'-... -<'" motor vehiGle~:which is not licensed to carry passengers, she cannot claim anything against the appellant. He further added that, for any amount to be granted either as special or general damages the same must be specifically proved and he said in this case there is no proof submitted. He finally prayed the proceedings, Judgement and Decree issued by the trial court be quashed and set aside with costs. Civil Appeal No. 234 of 2016 9 ~ u r Sameji,J In response, the Counsel for the 1st respondent decided to argue the grounds of appeal together and submitted generally that, the appellant and the 2nd respondent were aware of the law guiding transportation and restrictions therein, they ought to restrict the 1st respondent not to board the same. He said to the ~ontrary the

2nd respondent while in the course of his employmetti~nd. direp:ives ~;-:$; \. from the appellant charged the 1st responder;1t fare ana:::~allowe(f her to board the vehicle. He said the appellant a\~~f,)q~-~? nd ~~~~ndent .~:Z '-•.~ ~❖ •<,~❖•Y st have evaded tax from the fare charged· 'from ":::.. theti ,.. re!~pondent. He cited Gatley on Libel and Slande/f.~{itfiJ!~°}ge 218 as referred to in Mbaraka William Vs---.:A,:~ ',;K(~ute (1983) TLR 358 and stated that it was the duty~tJ}the ,••, ,.~fJ~J!anf;and ,& . the 2nd respondent to !:- ❖::,., ~~: .,,<:;:~, ,;'$.~"':~·· st report the criminal act . . d0,ne *~ bylhe)1. -. •;-,. respondent to the police. ~ -❖4• · ~-:.. "'\t . 'iL¾ lf )} The Counsel qt~the ,~!~»-~\'\-., i5,~sp~1Je~~t ::,:fu. argued further that, there is no dispute thaflfge 2~~ respot~eht is an employee of the appellant and· said as:~per:::-th-~\}r:l~i1~1e:c>f ·vicarious liability, the appellant is liable for §~ '>. " " - ~ : : ~ ; : ' \ : ; • "-!-:._~::~". . acts £9r '% omil\~l<Dn -~Sfnmitted .;• by his employee, provided it can be ~ prov~t{hat it _Jas committed in the course of employment It was the vie:,l"t~¥~~ Counsel for the 1st respondent that during the trial the case against the appellant was proved and that is why the trial Magistrate awarded the special and general damages to the 1st respondent. Civil Appeal No. 234 of 2016 10 The Counsel for the 1st

respondent added that, the issue of costs is reserved in the discretion of the Court. He noted that in this case the trial court exercised its discretion judicially to enable the 1st respondent to continue with her normal life. He cited the case of Chief Edmund I. Akanwino and 4 Others Vs Chief O.N Nsirim and 3 Others 1 SCNJ 275. He finally argued that th~ -:. submission by the Counsel for the appellant is baseless and the,*-f~peal shot,.1ld be dismissed and the decision of the trial court be~~-eld. .f • . '.>~;;. ~¾:~~·,. ':i ,.~J ~~~ . ""':::::'"' ·,, §-'-~~...., ••• ,, l~"! ~- . In rejoinder submission, the Counsel f<:>r•\the apR~llant;\Gtisputed the \,,~,,. \:,;, claim that, the appellant and the):~~, respdtlgenf\yy.ere supposed to _,. . ·· · ; ·\ '· ·' t;:-.,,,x>«· , ,, . "--:,-lS.:::;:::::;2:t_-:.:_.-..~ .•.i• • . st report the criminal act done b'(:~if, 1 ...;r:,~spolitlertt. He said before the . ·' \~;X:!.._ ¾, trial court the testimony gf~1tt~ ap~~!.lant"'6f;W2) was very clear that .,{?' ❖~· "-\l-. ..;>.._. he did not authorize th~- 2nd resl>ond~tlto carry passengers in the .. ;~\ ¼\. ,:-' said motor vehicl~,·i;ff~ich'f~as for ~1}rrying newspapers. Likewise the . ... -~~❖- .... •:h_ . .~· nd 2 respondent,.(PW1)'t~·1s~~1trmittid and testified that his boss had ;;,~::::::.-»¢- -.::g:3'::. restricted ,J:1'11l1.. f~{m ca(f~~-g passengers, but contrary to

those instructrions;._~-~~'o/tfft>)llo~i-ng authorized the 2nd respondent decided :f. ,. . -.."~.;i::~~~,. ··~~~ '.~!: -~:::"','.!❖~ ~~~❖~ '~ . to ta~ke passe'o,gers1YHe insisted that the appellant cannot be held 1~>. '::~ .•· liable~ff~r crimirf11 act committed by the 1st and 2nd respondents. He ~\t'::... '<,,~;_~.....,.,.-.,.«Jl further suSmitted that, the model of the motor vehicle itself is a single cabin with only two seats in front for the two drivers, but the 1st respondent intentionally decided to take the risk to board the same, though not authorized or even designed to carry passengers. He said the vehicle was written on all four sides names of the newspapers, 'The Nipashe' and 'The Guardian~ That, the 1st Civil Appeal No. 234 <~{ 2016 ~ R . K s,m,jl,J 11 respondent saw all those signs, but she decided to risk herself and hence committed an offence and cannot benefit from her illegal act. The Counsel then reiterated what he submitted in chief. I have given a careful consideration to the arguments for and against the grounds of the Appeal advanced by the learned ..counsel for the *}.,: parties. I have as well scanned the record of th~Gase and. I am settl ed th at .issues f or det ermrna . t",on herern . arf:t»,w11eu,er1:1ie ,J,., '"J,., \,II t ap0e11an ~~ '"J,., ~~-:.~ ( employerJ can be held liable for unlawful or cfi([itrllJhifFl done by the .,4 \ ,Q❖❖ v~:~;.,•' :!1d

respondent (employee) outside the\sR.ipe '<J( his •"employment. st Whether the 1 respondent i5-~reflt:((~c/..~{/1._%i{'!7}Ylamages for her unlawful and criminal act of bdatqjng iJ:;YJ:lOtor vehicle which was only ,. "!O::-~•,_ "·~ ::.. ":~% "·~ . . ."$:.~. -~'%"- '-:::~ ❖- authonzed and licensed ff!~Carry goof!.{?: . .l::-..~ t 'i•~ /~~~ . .::::::~, ~- :::· ' )..:_.'\ "~< ·'. ._. ... It is on record th~Jt~pe e=ijt!re cas~)~ on the applicability of the legal -~•{;:,,.. ,:-;~·-•.:- .~ principle on vic,9:..(~ous1laJ?il/ty<kwbich is arising from the relationship of ,.:_;-Sl:-"-.).\'%, ·.~)., a master aa"cl. serrlant ••. ·.-.:;.:». ::',:· or ~mp/ayer ~- and employee. The said principle ... ~ ~'),'\,.. --•~-; ". . ~" implies."tbat, ,.::-,:·-·····».:~:::.~a1t\~ffi*p~)iwerii~ liable for an act done by the employee in :f' ~'».. "-::&,·. -«:% ·. , ·* t he csourse o'~f?J"' '•::-❖x,, I'byment. .in t he case of I •G. i:. ·1s em}:) '~1~i' Lazaro Vs ;:..,...;'. ~.. -.._~---.... ' Jos~$h_ine .. ,:,. M~\m~ra, Civil Appeal No. 2 of 1986 (unreported), the ·"( -~.._;-..:'\- .. :..··;..· Court of Appeal while considering the same principle held that - "In matters of tort a tortfeasor, the person who commits a tort, is always primarily liable. An employer is vicariously liable if his servant commits a tort in the course and within the scope Civil Appeal No. 234 of 2016 12 of his employment. That

does not absolve the liability of the servant for the tort committed. " [Emphasis supplied] In addition see also the decision of Court o_!.;,~peal ir)' Ami Mpungwe Vs Ahas Sykes, Civil Appeal No 67 of¾zQOO an'd, the ,~::,,-.,.. '~ . t#';< Book of Ramaswamy Lyer's 'The Law of Tof:{${~1. .. -.... Lakshl!l{1tflath M. -=::.. '~--&~ ' f' Sridha~ ldh Edition 2007 at pages 81?",.{~14. \tiR~/· "". ,.~¾ % ,:.._ In the case at hand, and as el~lwlfr\!1'1~,~-~~ Tuy' the Counsel for the appellant, the appellant."b/tl:si.r1g ~. his~rnotor . vehicle model Nissan ",.,;;.:; ~ Pick-up with Registrati@'ri~..»~o ..,· f~$2BR~:-<· is doing business of transportation of neyvsp~pers ~l~:wfa~?a;ed by IPP Media, (N1.p·ashe -~ ,-~ ~ and Guardian) froni~ar &1salaamib ----~❖◊"~~~ Arusha. The said motor vehicle ·\~~::-,. . «.,".:: ;,,_..p'->'· ~'.<$,; .. ..._ '"'-""'"'-'~" is duly liCelJSetf~t9 caf}x;;.~ goo'ds only and not passengers. It is ~-~~ ij ~v·· categoriz:? ·is~GJ/!/{f,~b1cle with a business carrier's license duly authclt17:J)tQ~·,c}~~--;gQods only as per Section 11 (1) (a) and (2) of ~. ~ -.::,~.- -~~ ~--· '%'>;.-..:.·w' the ~ijnsport '.micensing Act. The motor vehicle is written on all four '1h ~ sides ~Wit!]~';:;D,?Jfnes of the newspapers, 'The Nipashe' and 'The Guardian~ The appellant has employed the 2 nd respondent as his driver for the said motor vehicle and for the purpose of carrying those

newspapers from Dar es Salaam to Arusha. Before the trial court and as per the trial court's typed proceedings at page 23 -24 the appellant testified that:- Civil Appeal No. 234 of 2016 13 .KS"m,ji,J "On 3dh August 2013 DWl was on duty to go to Arusha. I gave him the keys of the motor vehicle in order to pack the magazines. I have not instructed him to carry passengers. I was not at Ubungo and I have not received any fare. I have no agreement with DWl to carry passengers." See also page 7-8 of the trial court's Judgement. Also at Page 23 of the same trial court ,proceedings the 2nd respondent testified that, "DW2 is my boss who employed me to carry magazines. I have not been directed and authorized to carry passengers'~ I have however noted that in his submission the Counsel for the 1st respondent placed the liability on the appellant and argued that, the appellant and the 2nd respondent knowing that their motor vehicle is not allowed to carry passengers they would have refused to let the 1st respondent to board the motor vehicle. He further submitted that, the 2nd respondent acted unlawful while in the course of his employment anp directives from the appellant. With due respect to the learned Counsel, the record of the trial court is clear that, though, the 1st respondent is claiming that at Ubungo Terminal the appellant was present, but the 2nd respondent at page 23 of the

trial court's typed proceedings he testified that the appellant was not present at Ubungo. Likewise at page 20 of the same proceedings PW2 testified that, "I don't know Deodatus Mremi {the appellant) the Civil Appeal No. 234 of 2016 14 1st defendant {Z7d respondent) is the one who asked me to board the said motor vehicle'. Furthermore, the motor vehicle is restricted to carry goods only and not passengers. The appellant had since painted the said vehicle to indicate the type of business he is allowed and licensed to perform. So, whoever is seeing that motor vehicle can easily identify the same as a magazine vehicle or Goods Vehicle. Pursuant to Section 11 (1) (a) (2) and (7) of the Transport Licensing Act, (supra) and Regulation 4 (1) and (2) of the Transport Licensing, (Road Passenger Vehicles), Regulations (supra), a motor vehicle duly licensed to carry goods is .not allowed to carry passengers. As such, any person who uses the said motor vehicle contrary to its use is committing an offence. For the sake of clarity, I have endeavored to reproduce provisions of Section 11 (1) (a) and (7) of the Transport Licensing Act, here below:::.· "11 (l) Subject to the provision of subsection (6), and section . 12 no person shall, except under and in accordance with the-terms of a license - (a) use a goods vehicle or a public service vehicle for the carriage of goods for hire or reward or

in connection with any trade or business carried on by him; Civil Appeal No. 234 t?f 2016 .,KSameji,J 15 (7) If any person uses a motor vehicle in contravention of this section he shall commit an offence and shall be liable on conviction, in the case of a first offence, to a fine not exceeding fifty thousand shillings, ... '~ As per the above provisions there is no doubt that what was done by both the 1st and the . 2nd respondents was an unlawful and. crimina_l act under the law. The 2nd respondent was not authorized by his 6oss to 0 . . . ' carry passengers in a motor vehicle authorized and:•ifcensed to carry goods only. Furthermore, the 1st respond_ent, ·as per her own testimony, she knew quite well that the motor vehicle she asked for a lift to go to Moshi was not. a public tran,sport intended to carry passengers, but was only authorized to carry goods. However, she decided and willingl'f volunteered to board the same. This brings me· back to the, applicability of the principle of vicarious liability in such scenarios and specifically I am persuaded by the decision of,the Sopreme Court of Uganda at Mengo in the case of, Theresa Okoth Ofumbi and Jovan Kulany Vs Haji Hamedali Ahmed Karim, Civil Appeal No 24B/92, where it was held that:- "If the servant does not act bone fide, presumably he is liable on the ground that he has ceased to be his employer's alter ego. It is true

that even then he.might still be acting in the course of his employment, but we must take it Civil Appeu/ No. 234 of 2016 16 that this curious piece of metaphysics exempts the employer from vicarious liability for this particular tort. "[Emphasis supplied] With respect, I subscribe to the view of the Counsel for the appellant and I am further persuaded by the finding of my b.rdther Judge Hon . Shangwa, in Roba General Merchants' ca~e cited ..a~\qve. ~thus ~,« •❖--~,-- } • '& ¾.i. .§ wish to reiterate the decision in I.G. LazaF~is,_"%.~.gse crni0~ above .. ,:,_ ~~~ ,.. • • •i •~ "~~~ ~~~~:r ~. . . . ~' .- ■ where ,twas categorically stated by the~~~urt o~~~ppe~pof Tanzania ~.;,., ·~~ that the person who commi!ft~~fl.1.,:-.('!.rl:;\--:-/s 1['1Yays primarily / . . '~~-:··~~t~~ti~~ , liable. An employer is ;~rtl.faribl{sly 1ia1Jle if his servant •• ~:::,--;;;~ "I:,:.;~ commits a tort in thtJ;.-:.❖do.u.,rs1Jt{!/J,d-❖-~/thin the scope of his s;::;:;:, .• ❖- -;;;; ..;:::, ~ :::~ ./ employment. ~ <t ....❖{X•..,_ .•• -'%:~ ..~~~:;.\- J~· ,,x,~,x'.,. ~-- *~ ,.J.'~ ' -,~~ ,~ ~;-./J .~ ~~1 . Now, taking into acc6cl.nt tltat~,~~~tl;lis case the 2nd respondent stepped out of scop_£r(b~~) e~'.~l¾Jpent, it is my considered view that, his ••• :.:.:§':,.;. ;:.;:: §.-' employ~r., th~lap,p~llarnt,::,:,:_~lnnot be held liable whatsoever. Likewise, "~«'\~~'\"-'":-~~--.., . -~~'. .

·• sinc~f-the ,..,, -:l~ 5{t)re}~g.Qdent ~ •. ,r~ also knew that the motor vehicle she ~i~ ~$ ./' boar0~d is not~a public transport allowed to carry passengers, she ~1t~ ·. -~ willingi~)bbjecfed and placed herself into a risk or a position while knowing that where harm might result, she may not be able to bring a claim against the other party. This is in terms of a legal principle or a Latin Maxim 'Valenti non fit injuria~ I do as well support the other Legal Latin Maxim 'ex torpid cause non orbiter action/' cited by the Civil Appeal No. 234 of 2016 17 Counsel for the appellant. In the result the 1st , 2nd and 3rd grounds of appeal are allowed. As regards the 4th ground of appeal, I have since scanned the record of the trial court in respect of this ground and observed that, in her original claims indicated in the Plaint, the 1st respondent (the plaintiff then) had claimed to be paid 'a total sum of Tar1zanian Shillings Thirty Six Million and Five Hundred Thousands ·only, "• - ,':.· ,:.-:' . ,;<::>·· {Tshs.36,50(1✓ 000/-) as general damages being compensation for the injurie~ pain and suffering sustained by a plaintiff i1s a result of traffic accident caused by the defendant's negligence. However in the end the trial Magistrate decided to award the said amount of Tshs.36,500/000= as a ~pecific damages and Tshs 50/00(1✓ 000/­ as a general damages. I must emphasize that; it-is a

principle of the law that special or specific damages have to· be specifically pleaded and strictly proved. See the ~ase of Bolag .v Hutchson 1950 A.C. 515 at page 525, that special damages are:- ''such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their . character and, therefore/ they must be claimed specially and proved strictly'~ Civil Appeal No. 234 t!( 2016 ~""R.KS,mejOJ 18 See also the decision of Court of Appeal in Peter Joseph Kilibika and CRDB Bank Public Company Ltd Vs Patric Aloyce Mlingi Civil Appeal No. 37 of 2009, Court of Appeal at Tabora (unreported), where the two types of damages were clearly explained. To appreciate the decision of the trial court in awarding the said specific damages to the 1st respondent, I have per.lJt the rec?rd of the case and observed that, though the same was ~'tded w~ not ·~;;..... ~~ ,i,'$>' •)::,)~,. ~~ ::,.:::- proved specifically and strictly as required bytthe:Jaw % -,,::::".%~~... .. I "am-;: ~- aware .• "% ~-'.~~:,., -~~ that in arguing this point the Counsel '¾ for \tbe ~ )s~fespondent .. submitted that, the trial Magistrate .orJIY us~>.his di§f:retion, with due ,•• Y·'' ,t1f..:lit~\':x~. }· respect, it is a principle of the tayv thaf;'.JhoUgff·courts have discretion . ,.~{=~~~'\_ "- \.,. to utter some of the ordeGsAd.ecislq,1;1.s "-. ~,. 'A,~~

anch~pronouncements, _;,,;/ ~~ but the said discretion must be ;~.,xercis.e~~ydi1JH:i';ly and in accordance with / ~ ·:::.=t.. ,y the rules of rea.sotiing~~c:Jfld • ,, ~..... '-!x;_":i,~ jus(~e,❖) not arbitrarily, vaguely or fancifully, but _ac;:cord1il.tp,filr$1tit and principles. Now, considering .,::~-::::@- .. ":& . that the aaf,tnt1warded~W,as initially claimed as general damages without~sneci~\1:4~~f~t¥1e"cjecision ft f'.'.,::_~-:,,. ~::_;,~ of the trial Magistrate of awarding the ~me ai~~cl1t}>"c:Jamages without being specifically proved is a ~~ '~❖~ .. ~"'~ ~--...:, misc6q'q:~ption 9f both law and facts . . ~:~~;!~; ', ,.,~:~-- -.:,..~:;,-:::;, ·•-❖ In the final analysis and as I have painstakingly considered all issues and totality of the evidence on record and carefully analyzed the evidence of the parties in the scales of justice and princip.les of civil justice, It is my finding that the Appeal has merit and is hereby allowed. I hereby quash and set aside the decision of the Kinondoni Civil Appeal No. 234 of 2016 19 Plaint filed before this Court lacks merit following the failure by the plaintiff to prove the case at the required standards, as demonstrated by authorities referred to in this Judgement. Consequently~ I decline to grant the .orders prayed herein. I hereby declare that, the suit is hereby dismissed in its entirety. I make no order 9s to costs,

each party to shoulder his or her own costs. It is so ordered. I ,I '"':• DATED at DAR ES SALAAM th· 29t~,,dayqf.Se'pterrt~~r 2017. '.'.'.: >.·- >., . ·.:, ,..,_ •. Ruling Deliver~tiiiJip Cou'rt<~,Chambers in the presence of Ms. Bumi ,;~~~~)~~··;.~ -~~~':f ·' :,8i\f~'?,""' st nd Mwaisaka/tfr~1ti~~9fn,~~9,,,,~kP!Jnsel for the appellant and the 1 and 2 '"f':~~t;;_~~~,~&~!. ~,;.;,,.'o <~\~~;_; ', \. :~· ;::.~~/ resp0nden'tsi{t~ .:·: ,: ~--~}}~ ·-,::::r~, '\~;<.f: '. _ ,< v· ~-: ~t~\:s. \{;: ·····,', A right·ot:~pp,ea·1 ,, c·•: , ."~ explained. ---;---+--._ r ·R.K. ameji l DGE 29/09/2017 Civil Appeal No. 234 of 2016 ~.KS,mep.J 20