GURDEEP AZIMAL CBD HOTEL 9429

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT PAR E$ SALAAM CIVIL APPEAL NO. 9429 OF 2024 (Arising from the judgment and decree in Civil Case Number 58 of 2022 of the Resident Magistrate's Court of Par es Salaam at Kisutu ) GURDEEP SINGH AZIMAL............................................................ APPELLANT VERSUS CBP HOTEL LIMITED...................... RESPONDENT JUDGMENT 1st October & 6th December, 2024 DYANSOBERA, J.: The appeal arises from the judgment and decree of the Resident Magistrate's Court of Dar es Salaam at Kisutu in Civil Case No. 58 of 2022 whereby the learned trial Resident Magistrate did, on 9th day of February, 2024 enter judgment in favour of the respondent. The brief facts of the case as gathered from the record of the trial court are that, the appellant went to the respondent's restaurant at CBD Hotel with his friend. It was asserted that he ordered vegetarian pizza named Sweet N Spicy Veggies but he was wrongly served with pizza which contained meat. It was further asserted that the appellant practiced a vegetarian lifestyle based on the Sikhism religious faith. The appellant alleged that after consuming chicken pizza that was served to them, he developed migraine headache emanating from the Mental stress sustained from eating the food against his faith. The respondent refuted these claims. Upon hearing the suit, the trial Resident Magistrate dismissed the appellant's suit on the ground that the appellant failed to prove his case on balance of probabilities, the standard required in Civil cases. Being dissatisfied, the appellant preferred his appeal to this court premised on five grounds of appeal, namely: - 1. The Hon. Magistrate erred in law and in fact for wrongfully interpreting the decision in Donoghue case cited by the Appellant as distinguishable against the conduct and facts in the issue of the case under dispute, thus ended up erroneously ignoring and failed to relate the legal principle applicable for the case in Donoghue against the Page 1/4 issues and facts of the case under dispute, hence only ended up comparing tacts of the referred Donoghue case with the facts of the case in dispute as a result arrived at the wrong and illegal position of law against the Appellant unjustifiably. 2. The Hon Magistrate Erred in Law and in Fact, wrongfully made its decision based on wrong facts against appellant's testimony as regards to alleged time the Plaintiff claimed to have arrived at the Defendant's business (i.e. the court wrongfully referred to a specific time which was not pleaded by the Appellant nor testified by the Appellant in relation to the time the Appellant claimed to have arrived at the Respondent s Business /hotel), thus failing to take into consideration the testimony given by the PWI based on pleadings as regards to the time the Plaintiff arrived at the Defendants business CBD HOTEL) which eventually formed part of the reason for the magistrate to arrive at an unlawful, unjustifiable and biased decision against the Appellant. 3. The Hon Magistrate Erred in Law and in Fact by committing Manifest Error and Biasness in analyzing evidence in concluding the validity of evidence whereby the magistrate failed to take into account essential contents of the testimony from the Appellant's witness (PWI & PW2) and ignoring the important questions and answers put against the Respondent's witnesses by the counsel for the Appellant, something that caused the court to ended up at erroneous and bias decision against the Appellant. 4. The Hon Magistrate Erred in Law and in Fact by committing a Misapplication of Legal Standards to the Appellant's case in determining the final answer to the issues thus ending up unlawfully seeking the plaintiff to prove facts and prove issues beyond reasonable doubt against the standard imposed in civil case against facts in dispute which the Appellant believes to have done. 5. The Hon Magistrate failed to take into consideration the substantial and vital evidence from PWI and PW2 in proving that the Respondent supplied incorrect food items, deviating from what was specifically requested by the Appellant as per the menu (Exhibits PI, P2, P3, P4 & 1*5 ) the discrepancy oj which categorically defines what was ordered and what was Saved plus the consequences that resulted from the entire negligence as testified by the PWI & PW2f the failure of which resulted in the Page 2/4 court reaching erroneous decision while the Appellant’s testimonies serve as a foundational basis for establishing both breaches of duty of care and breach of contract between the Appellant and the Respondent the fact that was not contravened successfully by the evidence from the Respondent. On 26th August 2024 the appellant prayed this court to file a supplementary Memorandum of appeal bearing a proper decree, the prayer which was granted on 17.9.2024, and the same was filed as ordered. The supplementary grounds are: - 1. The Hon. Magistrate Erred in Law and in fact wrongfully interpreted the decision on the Donoghue Case cited by the Appellant as distinguishable against the conduct and facts in the issue of the case under dispute, thus ended up erroneously ignoring and failed to relate the legal principle applicable for the case in Donoghue against the issues and facts of the case under dispute, hence only ended up comparing facts of the referred Donoghue case with the facts of the case in dispute as a result arrived at the wrong and illegal position of law against the Appellant unjustifiably. 2. The Hon. Magistrate Erred in Law and in fact, wrongfully made its decision based on wrong facts against Plaintiff 's testimony as regards to alleged time the plaintiff claimed to have arrived at the Defendant's business (i.e. the court wrongfully referred to a specific time which was not pleaded by the Appellant nor testified by the Appellant in relation to the time the Appellant claimed to have arrived at the Respondent's Business /Hotel),thus failing to take into consideration the testimony given by the PW1 based on pleadings as regards to the time the Plaintiff arrived at the Defendant business (CBD HOTEL) which eventually formed part of the reason for the Magistrate to arrive at an unlawful, unjustifiable and biased decision against the Appellant. 3. The Hon. Magistrate Erred in Law and in fact by committing Manifest Error and Biasness in analyzing evidence in conducting the validity of evidence whereby the Magistrate failed to take into account essential contents of the testimony from the Appellant's witness (PW1 & PW2) and ignoring the importance questions and answers put against the Respondent's witnesses by the Counsel for the Appellant, something that caused the court to end up at erroneous and bias decision against the Appellant. 4. The Hon. Magistrate Erred in Law and in fact by committing a Misapplication of Legal Standards to the Appellant's case in determining the final answer to the issues thus ending up unlawfully seeking the plaintiff to prove facts and prove issues beyond reasonable doubt against the standard imposed in Civil case against facts in dispute which the Appellant believes to have done. 5. The Hon. Magistrate failed to take into consideration the substantial and vital evidence from PW1 and PW2 in proving that the Respondent supplied incorrect food items, deviating from what was specifically requested by the Appellant as per the menu (Exhibits PI, P2, P3, P4 & P5) the discrepancy of which categorically defines what was ordered and what was saved plus the consequences that resulted from the entire negligence as testified by the PW1 & PW2, the failure of which resulted in the court reaching erroneous decision while the Appellant's testimonies serve as a foundational basis for establishing both breach of duty of care and breach of contract between the appellant and the respondent the fact that was not contravened successfully by the evidence from the respondent. Hearing of this appeal was through written submissions. Parties were duly represented whereby Mr. Themistocles Laurian, learned advocate appeared for appellant, whereas Dr. Onesmo Kyauke represented the respondent. In determining this appeal, I do not intend to reproduce, in full, the submissions of both counsels. The reason being to avert having a voluminous judgment due to bulky submissions presented before this court. For instance, the submission in chief by the appellant counsel has 23 pages, the reply to has 5 pages and the rejoinder has 10 pages. Since the written submissions are all on record, they can be easily retrieved, in case a need arises anyhow. On the first ground of appeal appellant's counsel challenged how the trial magistrate distinguished the celebrated case of Donoghue v. Stevenson where she stated that the circumstances in that case differ from case at hand. To the appellant counsel, the principle of neighbor established in the celebrated case is applicable in the case at hand. He submitted that the fact that his client was vegetarian and ordered vegetarian Pizza named Sweet N Spicy Veggies but was given chicken pizza that is negligent on part of respondent. That, he is entitled to be compensated as he suffered damages. In reply the respondent counsel joined hands with trial magistrate and referring to page 23 of the typed judgment where he stated that the trial magistrate was correct in distinguishing the cited celebrated case. From the submission of the two counsels in this issue as they both in agreement on how the trial magistrate discussed this issue, I think it is important to reproduce the specific part where trial magistrate had this to say; '........ This case is distinguishable from our case at hand as Donoghue's case was based on the contaminated snail in the bottle that was opaque which could not easily be seen while pizza is something which can be seen easi/y. It was also not in evidence that the pizza was contaminated or otherwise harmful for human consumption'. With respect, I agree. In my view, for a person to have the court sustain a claim on he needs to establish negligent of the other part but has the role to play in averting being a victim. In the case at hand, if the appellant was a vegetarian, he had the means and time to identify and detect the food presented to him by his five senses, such as smell, look and even taste by his tongue. If the appellant could not identify the chicken pizza and differentiate it from the food he was accustomed at eating, I do not see how he can escape from blame as well. Having said that I join hand with trial magistrate argument that the pizza was seen contrary to the opaque situation in Donoghue case. This ground lacks merit. On the second ground the appellant counsel argued that the trial magistrate was wrong to state the specific time he went at CBD hotel while he pleaded that he went around 19:00 hrs. In reply the respondent stated that what the trial magistrate was doing was to show the contradiction on part of plaintiff case and he wondered why it was brought as the ground of appeal. I have thoroughly gone through the trial magistrate findings on these facts where she pointed out that the proof that shown the appellant visited the Hotel was the order form and on the contrary the order form shows that it was pressed before the appellant reached at the Hotel. Whereas to her the record shows that the appellant pressed order when he reached at the hotel contrary to order form. I think the appellant should not have raised this as the ground of appeal for two simple reasons; One, raising this ground adversely affects the appellant's credibility in his pleadings and testimonies. In law pleadings must state the time when the cause of action arose. Under 0. VII, rule 1 (e) of the CPC provides that; "The facts constituting the cause of action and when it arose"; In the instant case, the appellant did not plead any specific time he alleged to have gone to the respondent's business premises. Besides, his argument that he went there around 19:00 hrs. was not substantiated for, even his friend he mentioned to have been with him at the did not testify. This means that the appellant failed to call him to testify and this was a proper case to draw negative inference against the appellant. In the case of Medicaid v Mohamed Mbilu [1984] TLR 113 (HC), this court observed that; "Where for undisclosed reasons, a party fails to call materia! witnesses on his side, the court is entitled to draw an inference that if the witnesses were called, they would have given evidence contrary to the party's interests" Aside that, the order form, it contradicts the appellant case. This ground has no merit as well. On the 3rd and 5th ground which the appellant counsel used 9 pages to submit how the trial magistrate failed to analyse evidence presented by the appellant herein. He generally stated that the trial magistrate failed to give weight to images, receipts audio and videos presented during the trial by the appellant whereas the same was not disputed by the respondent in their pleadings at the trial level, he also stated that trial magistrate used more time to discredit his client testimony without comparing with the one presented by defence. In reply the respondent counsel reminds the appellant on the duty of the one who alleges must prove and that can not be shifted to defence. On my part I am in agreement with Dr. Kyauke that the one who alleges has the duty to prove his case. In the case of Hemedi Said v Mohamedi Mbilu (1984) TLR 113 it was held that: - "He who alleged must prove the allegations". As I hold on my analysis on the 1st ground of appeal the circumstance in the Donoghue case does not fit in the appellant case hence that suffice to dispose of this ground. In addition to that it should also be noted that judgment writing it is an art anyone can have its own style what is important is the judgment should have all the contents stated in the provision O.XX, rule 4 of the Civil Procedure Code. Good enough I did not see any challenge from the appellant if there is any content miss hence for her to examine the appellant testimony and exhibits was only to weigh the evidence and can not be termed as bias. On the 4th ground the appellant alleged that the trial magistrate required him to prove his case beyond reasonable doubt which is not the required standard in civil cases. He stated that his pleadings and testimony proved his case on balance of probability which is a standard required by the law. And added that the two-witness presented was enough to prove his case contrary to the trial magistrate who saw the need of presenting his friend. In reply respondent counsel argued that his friend was necessary to prove what happened on the day of the incident. This ground won't take much of my time, my argument during determination on the above ground suffices in addition to that it should be noted that what to proof in normal civil cases may be similar to tortious liability cases but tortious liability has set some standard to be proved by the claimant which are where there is duty of care, whether that duty has been breached and whether the claimant suffered damage due to that breaches and reliefs sought. The 4th ground collapses. In resume, it is my finding that the appellant failed to prove his case to the required standard, that is on balance of probabilities, one, was he (the appellant) owed a duty of care? Two, did the respondent breach that duty by failing below the required standard of care? Three, was the respondent's breach of duty the factual cause of the appellant's injury? And four, was the damage suffered not too remote? According to the evidence on record and the finding of the learned trial Resident Magistrate, the appellant failed to positively answer those questions. Besides, It is also trite that burden and standard of proof mandate which party is responsible for convincing the court and to which extent that party needs to justify their claims. The Court of Appel in Civil Appeal No. 455 of 2020 between Crescent Impex (T) Ltd v. Mtibwa Sugar Estates Ltd at p. 10 of the judgment observed: 'It is also elementary that the standard ofproof in civil cases is on a balance ofprobabilities which means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. Likewise, it is the law that the burden ofproof never shifts to the adverse party until the party on whom the onus lies discharges his/her burden to prove and the said burden is not discharged or diluted on account of the weakness of the opposite party'. In the final analysis and for the reasons stated, I find the appeal unmerited and the same is dismissed with costs to the respondents. 6.12.2024 This judgment is delivered under my hand and the seal of this Court on this 6th day of December, 2024 in the presence of the appellant and Mr. Themistocles Rwegasira, his learned advocate and Ms. Mariam Ismail, learned counsel for the respondent.