20120921 TZHC Arusha 1

IN THE HIGH COURT OT TANZANIA ATARUSHA PC. CIVIL APPEAL NO. 50 OF 2003. (Originating from District Court Arusha Civil Appeal No. 61/2002) ELIATOSHA TARAKWA ............ ~ ............................... APPELLANT VERSUS MARY MOKA ..................................................... RESPONDENT Date of last order: 30/11/2011 Date of Judgment: 04/04/2012 JUDGMENT F.H. MASSENGI; J. The appellant Eliatosha Tarakwa being aggrieved by the decision of A.A. Shakale, DM, in Civil Appeal No. 61 of 2002 dated 26th May, · 2003 appealed against the said decision on the following grounds:- 1. That on the day of hearing of the appeal before the Arusha District Court, the appellate Magistrate and Respondent (who is a Primary Court Magistrate) entered in chamber and had a long conversation in the absence of the Appellant. After ,a period of about 20 minutes the Appellant was called in the chamber and simply told by the Appellate Magistrate that the appeal was time barred. The conversation the Appellate Magistrate had with the Respondent in the absence of the Appellant was prejudicial to the Appellant hence he was notfairly treated. 2. That the Appellant applied for copies of proceeding and judgment for appeal purposes. He was only supplied with a copy of judgment on 13th June, 2002. The copy of proceedings was supplied to him on 20th June, 2002. The appellant filed his appeal on 18th July, 2Qq2 counting from the ' . 1 date he was supplied with a copy of proceeding the Appeal was filed in time. I 3. That the Respondent being a Primary Court Magistrate did her best to frustrate Appellant's efforts to ,get the copies of proceedings and judgment. The Appellant was able to get these copies after complaining to the Resident Magistrate as per letter dated 11 th March, 2002. 4. That the proceedings of the Primary Court in this matter was a nullity the same having been based on the tort of negligence measured in monetary terms and not based on customary or Islamic Laws. 5. That the Respondent had no cause of action against the Appellant as the Appellant was sued in the Primary Court for an act of his son who is not a minor. The Appellant cannot vicari?usly be held liable for the tortuous or criminal acts done by his adult son. ·I 6. That the Plaintiff/Respondent did • not know the date of the alleged I accident and that she had no "LOCUS STAND/'/ in the matter before the Primary Court as the alleged damaged vehicle was not hers. She did not sue under any Power of Attorney fro,m the owner of the vehicle. 7. That the Plaintiff/Respondent sued a, wrong party whom was not a party to the tortuous Act. 8. That the trial court's judgment did ~ot tally with the evidence on record. This shows a taint of untruthfulness in Plaintiff's or Respondent's claim. I No evidence or at all was led to pr~ve that such huge amount of money was actually paid to the alleged vehicle repairer. 9. That the claim was not at all substantiated. No traffic vehicle Inspection Report or Invoice/Receipt from the alleged repairer of the said vehicle was tendered in evidence to establish the extent of the alleged damage to the I vehicle and the cost of the repair. 10. That the Plaintiff/Respondent evidence was materially contractictory and inconsistent. Respondent (SM1)', state that the Appellant only offered a calf while on the other hand (SM2) stated that in addition to the calf Tshs. 200,000/= was also received. ' I 11. That the claim was hopelessly time barred under the Law of Limitation Act 1971 as the alleged ', accident upon which this claim is founded, elapsed in July 1999. 12. That should there be any individual agreement reached between the Respondent and the Appellant at the alleged meeting, the Respondent 2 I ought to have sued the Appellant on that particular aspect only and ought not to have "found" her claim on tortuous deeds on which the Appellant was not a party. FOR WHICH REASONS the Appellant prays that this Appeal be allowed with costs. On 30/11/2011 when parties appeared before this court, the appellant prayed to argue this appeal by way of Written Submissions and the Respondent did not object. As such this court granted the prayer and it was scheduled the Appellant to file his submission by 3rd January, 2012, Reply to be filed by lih January, 2012 and Rejoinder if any to be filled by 31 st January, 2012. The appellant complied to the scheduling order as he filed his submission rd on 3 January, 2012 but the respondent failed to comply with the scheduling order. Since it is an established principle that failure of the respondent to file his submission amounts to failure to defend the case, I will therefore make my decision basing on the appellants submission. During the submission of the appellant, he decided to abandon grounds 1, 2, 3 and 7 and therefore submitted on the 4, 5, 6,8,9,10,11 and 12 grounds of appeal. In his submission, the appellant briefly provided a background of this matter to the effect that the son of the Appellant who was in private employment as a driver in July 1996 was involved in an accident with vehicle belonging to the Respondent's husband. The Respondent who is the wife of the owner of the vehicle sued the Appellant for the cost of the repair of her husband's vehicle which was damaged by Appellant's son. Submitting on the 4th, 5th and 6th grounds of appeal in which he argued them jointly, the appellant submitted that the whole trial at the Primary Court was a nullity because the claim the Respondent raised against the Appellant was based on negligence under the law of tort. It is his supposition further that the trial Primary Court was not vested with jurisdiction to try claims based on the law of tort of negligence measured in monetary terms as per section 18 of the Magistrate's Courts Act which provides jurisdiction of Primary Court in all matters pertaining to Civil actions. 3 He further asserted that it is the son of the Appellant who knocked the Motor Vehicle in question and the said son was a qualified driver and at that time was in the employment for gain as a driver. Therefore the respondent ought to have sued the son who knocked down the vehicle since that son was an adult and not a minor. The appellant further stated that in the trial court, the respondent did not state the date on which the accident occurred, also did not state whether the vehicle involved in the accident was his property. He suggested that S.N. Maka (SM2) stated in his evidence the vehicle is his property. But SM2 did not sue the Appellant nor did the Respondent sue the Appellant under Power of Attorney donated by the owner of the vehicle. Therefore the respondent had no locus standi to sue the Appellant. Submitting on the 8,9,10 and 12 grounds of appeal, the appellant submitted that the respondent gave evidence that the vehicle that was involved in accident was repaired at cost of Tshs. 3,800,000/= only. Further the respondent did not produce in evidence any receipt or document from whoever repaired the said vehicle showing the actual cost of the said repair. Also the extent of damage caused to the vehicle was not proved because no Police vehicle Inspection report was tendered in evidence. He further added that the evidence of both SM 1 and SM2 suggests that the parties mutually agreed on the payment the Appellant would pay to the Respondent but the appellant failed to honour the agreement. That being mutual agreement, the Respondent needed not to file Civil Action against the Appellant because the appellant is innocent as he was not the one driving the vehicle which allegedly knocked down the vehicle in question. Basing on the above the appellant contended that the respondent has no cause of action against the appellant. Submitting on the eleventh ground of appeal, the appellant contended that the Respondent claim against the Appellant is hopelessly time barred basing on the ground that the accident occurred on July, 1997 and this matter was filed before Enaboishu Primary Court on 11th October, 1999. Therefore this being an action based on tort, the period for filing this matter elapsed on July, 1999. 4 He therefore submitted that the claim against the Appellant was not only time barred, it was also directed at a wrong party. As such prayed this appeal be allowed. After going through the submission of the appellant and records of lower courts, I prefer to start with the 4 th , 5th and 6th grounds of appeal in which I will determine them jointly as well. Before I proceed I have no doubt that the Primary Court had jurisdiction to entertain this matter because this action is not based on tort. This is a normal civil suit which arise from a traffic offence. In this case the respondent filed an action before the Primary Court for recovery of Tshs. 1,600,000/= being the expense_s she incurred to repair the car which was involved in the accident, and he claims that the accident was caused by the son of the appellant. On that basis it is my consideration that the claim that the Primary Court had no jurisdiction to entertain this matter does not stand on the ground that this claim does not arise from tortuous action. Since this claim is a normal civil suit and as we are all aware that the limitation period on civil suits is 6 years, then this suit was instituted within t,ime. Proceeding with the 4th, 5th and 6th grounds of appeal, it is established in evidence before the lower courts that the offence which led to this claim was committed by the Appellant's son. The evidence also suggests that the said son who knocked the motor vehicle in question was an adult competent of being sued on his own capacity. On that regards it is against justice to institute the claim against the Appellant who is not the one who committed the crime. This position of the law was also stated in the case of CHIKUMBI CHILOMO Vs. MADAHA MGANGA [1986] TLR in which it was stated that:- ''Jt is against general ideas ofjustice that a man should suffer or be punished directly either in person or in property for some wrong which he has not done himself'~ Ever though the father compromised ,with the respondent to pay some amount of money so as to settle the matter out of court with intent of protecting his son from being apprehended before the court of law, yet if the appellant failed to honour the agreement, the respondent was not justified to take action against the father. The action was supposed to be taken against the son himself 5 (personally) by apprehending him before the court of law and not to institute a claim against the father. On that regards, I concede with the appellant that the respondent had no cause of action against the Appellant. With regards to the issue of locus standi I respond positively that the respondent had no locus standi to· bring this matter before the court being on the ground that it is not established in evidence that the respondent is the owner of the motor vehicle which was involved in the accident. Although the respondent is the wife of the owner of the motor vehicle, yet it was required to prove that the said property was owned jointly. Short of that I find that the respondent had no locus standi to institute this matter before the court. Proceeding with the st\ gt\ 10th and 12th grounds of appeal, I would like to state that even if this claim could be instituted against the son of the appellant and even if the respondent could have cause of action and locus standi against the appellant, yet the respondent was duty bound to produce evidence so as to prove the damages claimed. It is an established principle in law that where special damages are claimed they must be proved in evidence, this was stated also in the case of JUMA MISANYA and ANOTHER Vs. LISTA NDURUMAI (1983) TLR 245 (HC). That being the position, even if this claim could be instituted against the wrong doer, yet it was not substantiated for failure to produce proof of costs incurred such as receipts of cost for repair and traffic vehicle Inspection Report to prove that the damage of that motor vehicle was to what extent. Basing on the above, I find that also the claim for damages was not substantiated. Considering the reasons stated above, I therefore allow this appeal. No order as to costs. 6 Order accordingly. SGD: F.H. MASSENGI JUDGE 04/04/2012 Delivered in chamber court this 4th April, 2012 in presence of both parties. SGD: F.H. MASSENGI JUDGE 04/04/2012 I hereby certify this to be a true copy of the original. DI~ RICT REGISTRAR ARUSHA :L f , o 't ~ ~ rL 7