20100827 TZCA Arusha 1

IN THE COURT OF APPEAL OF TANZANIA

ATARUSHA {CORAM: MSOFFE, J.A., KILEO, J.A. And ORIYO, J.A.) CIVIL APPEAL NO. 80 OF 2009 1. FREDRICK WANJARA } 2. M/S AKAMBA PUBLIC ROAD SERVICE LIMITED ....................APPELLANTS a.k.a. AKAMBA BUS SERVICE

VERSUS ZAWADI JUMA M RUMA ................................................•................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Arusha) (Sambo, J.) dated the 3 rd day of lune, 2008 in Civil Appeal No 3 of 2006

JUDGMENT OF THE COURT 25 & 27 August, 2010 KILEO, J.A.: The appeal in this case is basically against the quantum of damages that was awarded against the appellants. A brief account of the facts show that on 12th January 2003 there was an accident which occurred along Morogoro Road at Magomeni Mapipa in Dar es Salaam City. The accident involved a bus belonging to the second appellant and driven by the first appellant. The respondent who was crossing the road was knocked down due to the first appellant's careless driving. As a result of the accident the respondent sustained multiple injuries. The most severe of these injuries 1 led to the amputation of his right leg. The first defendant was charged and convicted of causing bodily injuries through careless driving. The respondent filed a civil suit from which this appeal arises claiming for both special and general damages. The civil case proceeded exparte after the appellants had defaulted in filing a written statement of defence. The doctor who attended the respondent (PW4, Victoria Julieth Munthali) assessed total temporary incapacity at 100% for one month. During this period the respondent was completely bed ridden. Temporary partial incapacity during the period that the respondent had been exempted from duty (one year) was assessed at 50%. Permanent incapacity was assessed at 75%. In the decree that was passed against the

appellants the learned High Court judge awarded the sum of shs. 11,051,900/= as special damages and shs. 465,000,000/= as general damages. The judge also awarded 26% interest on special damages and costs from the date of filing the suit till date of judgment. The appellants were further ordered to pay 12% interest on the decreed sum from the date of judgment till payment in full. 2 The appellants who were represented by Mr. Apollo Maruma, learned advocate, at the hearing of the appeal filed ten grounds of appeal which basically challenge: a. the quantum of damages awarded; and b. the percentage of interest awarded. The respondent was represented by Mr. Elvaison Maro, learned advocate. The main question that faces us in the circumstances of this case is whether there is sufficient cause for us to interfere with the award of damages and interest that were decreed by the trial court. Urging us to re-assess the damages Mr. Maruma submitted that the trial judge did not indicate how he arrived at the various amounts that he awarded. On the award of shs. 60,000,000/= as general damages for loss of earnings, the learned counsel argued that there was no proof of such earnings. Mr. Maruma contended also that the amount of shs. 400,000,000/= awarded as general damages for pain, injury and suffering was excessive when the social and economic status of the country coupled with the

appellant's worth is considered. 3 Mr. Maruma challenged the award of special damages on what he called a crisis of identity. He pointed out that the name appearing on the annexures supporting the claim for special damages did not tally with the respondent's name. On the question of 26% interest awarded on special damages and costs, Mr. Maruma argued that this Court should re-consider it as it was not explained how it was arrived at. Regarding the 12% interest imposed on the decreed sum from date of judgment till payment in full, the learned counsel submitted that in terms of Rule 21 (1) of Order XX of the Civil. Procedure Code (CPC) any interest in excess of 7% could be awarded only with the agreement of both parties. Mr. Maro began his submission by pointing out what he termed to be salient features in the memorandum of appeal. Referring to Rule 93 (1) of the Court of Appeal Rules he argued that ground no. 2 in the memorandum of appeal which states that "the assessment of damages is against the weight of evidence"is not really a ground of appeal. The said Rule reads: "93-(1) A memorandum of appeal shall set forth concisely and under distinct heads, without argu_ment or narrative, the 4 grounds of objection to the decision appealed against, ' specifying the points which are alleged to have been wrongly decided, and the nature of the order which it is proposed to ask the Court

to make." Mr. Maro pointed out further that ground no. 6 as well as ground number 8 were not supported by the record. This is true. There is nowhere in the record where the judge treated entries in a bank statement as evidence/proof of business income nor did the judge award special damages at shs. 100,000/= per day. The two grounds are a misconception. Grounds no. 1, 2, and 3 are about the same thing; that is, application of wrong principles in assessing damages. On the appeal generally, Mr. Maro led us through a number of authorities (for which we are immensely grateful), giving guidance on circumstances under which an appellate court may interfere with a trial court's assessment of damages. The learned counsel argued that bearing in mind the principles enunciated in those authorities and considering the extent of the injuries that were sustained by his client, this Court would have no justification for upsetting the award that was made by the trial judge. 5 Responding to Mr Maruma's challenge on the 26% rate of interest awarded on the special damages and costs, Mr. Maro pointed out that there was no defence to contradict what was pleaded in the plaint. As for the interest of 12% on the decreed sum which the court awarded Mr. Maro argued that it was proper. In support of his contention he referred us to Said Kibwana & General Tyre East Africa Ltd and Rose lumbe (As

an Administrator of the Estate of lumanne lumbe) [1993 ] TLR 175. The Court held in this case that "the rate of interest to be awarded during the period after the Judgment is delivered is governed by the provisions of Order 20 Rule 21 of the Civil Procedure Code which is limited between the minimum of seven per cent per annum and the maximum of twelve per cent per annum'~ As stated earlier, this matter revolves on the question of quantum of damages. The argument by Mr. Maruma that there is a crisis of identity when it comes to the issue of specific damages need not detain us. The respondent explained the use of the different names in the course of giving his evidence. The explanation was not then contradicted and it is now too late to challenge it. 6 • Now, the main issue before us is whether there is justification for us to interfere with the quantum of damages that was awarded by the trial court. Mr. Maro rightly pointed out that there are no hard and fast rules in the determination of general damages and they cannot be approached with mathematical precision. The learned counsel referred us to Richard Kuloba who in his book titled Case Book on Measure of Damages for Bodily Injuries (LawAfrica 2006) has discussed at length the principles on which an appellate court can act on an appeal against quantum of general damages awarded. In his discussion Mr. Kuloba made reference to

a number of cases including Obongo and another v. Municipal Council of Kisumu, (1971) E A 91 and Butt v. Khan, Court of Appeal at Nairobi, civil appeal number 40 of 1977. Mr. Kuloba summarizes the holdings in these cases thus at page 25: "Generally speaking the figure reached by the trial court is not disturbed on appeal unless it is based on some erroneous principle or it is so low or so excessive that it must have been based on some incorrect reasoning........... " The learned author states further: 7 ''Assessment of damages is more like an exercise of discretion and an appellate court is particularly slow to reverse the trial judge on a question of amount of damages unless it is satisfied that it misapprehended the facts or has for this or other reason made a wholly erroneous assessment of the damage suffered. It is not what the appellate court would have awarded, but whether the judge has acted on wrong principles. " Now, in the light of the above, can we say we have sufficient cause in the circumstances of this case to interfere with the award of damages arrived at by the High Court? In awarding shs. 400,000,000/= general damages for suffering, pain and injury, the High Court judge stated as hereunder: ''Finally the plaintiff was granted permanent incapacity worth 75% after having suffered serious and permanent debilitating and disfiguring injuries/ that is crash injury of

the right foot mild head injury, multiple bruises both upper and lower limbs and closed fracture left distal femur. As correctly stated in his oral testimony, the plaintiff really suffered great pains due to these major injuries. I do assess the general damages to the tune of T.shs. 400/000/000/-." 8 It is obvious that in awarding the above amount the learned trial judge took into account the gravity of the injury that had been suffered by the respondent. There is no doubt also that the injuries sustained by the respondent were such that seriously affected his earning capacity. Mr. Maro did also refer us to a text book by A. S. Bhatnagar titled HOW TO CLAIM CONTEST AND ASSESS MOTOR ACCIDENT COMPENSATION- Fourth Edition. Discussing the principles for determination- of quantum of damages and compensation in personal injury cases the learned author stated at page 521: ''in cases of disablement by virtue of loss of limb or any permanent defect, the compensation goes to a living person and not to the dependants, or to the estate of the deceased and, therefore, it is an experience of the Court that in disablement cases, compensation awards are always higher than even in cases of death. ... Bodily injury is to be treated as a deprivation which entitles a plaintiff to damages and that the amount of damages varies according to the gravity of the injury; Deprivation may bring with it

three consequences: i) loss of earning or earning capacity; 9 ii) expenses of having to pay others for what otherwise he would do for himself; and iii) loss of enjoyment of life, or a diminution in full pleasures of living; In considering the deprivation, the Court should have regard to the gravity and degree of deprivation, that is to say, whether one or more limbs has been lost, the duration of the deprivation, and the degree of awareness of the deprivation. The settled pattern of awards in personal injury cases is not to award merely token damages, but to grant substantial amount'~ On the award of general damages to the tune of Shs.65, 000,000/=. Mr. Maro argued that the learned trial judge was justified to treat and assess the loss of earnings as general damages instead of special damages. He referred us to Kemp and Kemp on the Quantum of Damages second edition where the learned authors at page 12 stated: "Where the plaintiff is paid wages or a salary, it is usually possible to calculate this loss exactly, in which case the loss is treated as special damages. But in the case of a self- employed or professional man 10 whose earnings fluctuate the court will have to estimate this loss and award general damages in respect of it " The above is exactly what the trial judge did. A look at what the learned judge stated as it appears on page 40 of the record brings home the

point. He stated: ''In his oral evidence and pleadings, the plaintiff treated as special damages the loss of working days/earnings at a time when he was hospitalized, that's 1zh January to 1,fh February 2003, claiming a total of Tshs. 3,000,000/- at the basic rate of Tshs. 100,000/- per day for 30 days. As it is difficult and not possible to prove such earnings, I am of the considered opinion that in law, such claims of damages falls within the category of general damages. Damages of this kind are only presumed and in view of the aforesaid book of Winfield and Jolowicz on Tort 1Zh ed; W. V. H. Rogers at page 621, "General damage is stated to be damage which will be presumed'; I am fortified in the point that such claims need be treated as general damages." The learned judge assessed general damages for the time that the respondent was 100% totally incapacitated and thetime that he was 50% 11 ~ f partially incapacitated at Tshs. 5,000,000/= per month. Evidence was led to show that he was partially incapacitated for 12 months while total incapacity was for one month. The respondent who was self employed as a gemstone dealer was unable during this period to earn a living. We are of the settled mind that the learned trial judge did not apply a wrong principle in arriving at the above amount and we find no reason in the circumstances to interfere with his approach. In view of the

above considerations we hold that there is no justification for us to interfere with the quantum of damages that the trial court awarded. Turning now to the question of interest, Mr. Maro rightly pointed out that 26% interest on the special damages and costs was imposed on the basis of the claim contained in the plaint at paragraph 22 ( d) which was not contradicted. Indeed this is not the time to challenge that rate of interest. The appellants lost their chance to challenge it when they failed to file their written statement of defence. On the 12% interest imposed on the decreed sum Mr. Maruma argued that the trial court erred in law to award that percentage as any interest above 12 7% could only be imposed upon agreement of both parties. The learned counsel referred us to Rule 21 of Order XX of the CPC in support of his contention. The said Rule provides: "(1) The rate of interest on every judgment debt from the date of delivery of the judgment until satisfaction shall be seven per centum per annum or such other rate, not exceeding twelve per centum per annum, as the parties may expressly agree in writing before or after the delivery of the judgment or as may be adjudged by consent:" A close scrutiny of the above provision leads us to the conclusion that Mr. Maruma's argument is valid. The way the provision is couched, especially the use of the term "shall" and the phrase "or

such other rate, not exceeding twelve per centum per annum, as the parties may expressly agree in writing" enjoins a court to impose a 7% interest unless the parties agree to a higher rate, but which must not exceed 12%. As there was no agreement between the parties for the imposition of a higher interest rate, the trial court was duty bound to impose a 7% interest on the decreed sum. We in the circumstances vary the 12% interest imposed on the 13 decreed sum and in its stead impose a 7% interest in accordance with the law. Apart from the above variation with regard to interest we otherwise find the appeal to be lacking in merit. We accordingly dismiss it with costs. DATED at ARUSHA this 27th day of August 2010. J.H. MSOFFE

JUSTICE OF APPEAL .. ·,, o:\ .,,t,.' E• A • KILEO ) .-.\ JUSTICE OF APPEAL .... K. K. ORIYO ~

JUSTICE OF APPEAL ., J\1 ----~ ~·- ... I certify that this is a true copy of the original . . ·~- -· ·w1zu)

DEPUTY REGISTRAR

COURT OF APPEAL 14