20161216 TZHC Dar es Salaam 1

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 165 OF 2010 HALIMA MOHAMED MAMUYA .................................... PLAINTIFF VERSUS THE BOARD TRUSTEE OF 1 ) PARASTTAL PENSIONS FUND ..................................... DEFENDANT NATINAONALINSURANCE COPORATION (T) LTD ......................................... 1 sT THIRD PARTY THE HERITAGE ALL INSURANCE (T) LTD ........... 2N° THIRDY PARTY JUDGMENT MKASIMONGWA, J. HALIMA MAMUYA (Plaintiff) sues the BOARD OF TRUSTEES OF ( ' PARASTATAL PENSIONS FUND (Defendant) claiming for the payment of Tshs. 420,000,000/= being special and general damages, and interest thereto arising from the injury and loss suffered by the plaintiff in the defendants' premises as a result of the Defendant's negligence. The claimed sum is itemized in the plaintiff's prayer for judgment and decree against the Defendant as follows:- (a) The Defendant to pay the plaintiff Tshs. 220,000,000/= being specia I damages --------- 1 j (b) The Defendant to pay the plaintiff general damages to be assessed at not loss than Tshs. 200,000,000/= (c) Interest on (a) and (b) above at the rate of 13.5% per annum from the date of filing the suit till the date of judgment. (d) Interest on the decretal sum at the rate of 7% per annum from the date of judgment to the date of payment in full ( e) Costs of and incidental to the suit; and (f) Any other relief this Court deems fit and just to grant. Acting for the Defendant Mr. Daimu learned advocate filed Third Party Notices against the NATIONAL INSURANCE CORPORATION OF (T) LTD (1 st Third Party) and THE HERIGAGE ALL INSURANCE (T) LTD. All, that is, the Defendant and the two Third Parties filed their respective Written Statements of Defence. They all, for various reasons, have opposed to the claim. From the pleadings the following issues for determination were framed 1. Whether the plaintiff got an accident owing to the defects of the Defendant's premises. 2. If issue No. 1 is answered in the affirmative, whether the plaintiff suffered any injury. 3. Whether at the time of accident the premises were under the control of the Defendant. 4. Whether the accident was a result of a contributory negligence on the part of the plaintiff. 2 5. Whether at the time of accident the premises were insured by the Third Parties. 6. Whether the plaintiff has suffered any damages 7. To what reliefs are the parties entitled. At the hearing of the matter the plaintiff was represented by Mr. Mchome, learned advocate, whereas Mr. Daimu, Mr. Mhajale/Miss Barnabas and Mr. Swai, learned advocates, advocated for the Defendant, 1st Third Party and 2nd Third Party respectively. With a view to establish, her case the plaintiff had two witnesses to call. They are HALIMA MOHAMED MAMUYA (Plaintiff/PW!) and Dr. VICTORIA JULIETH MUNTHALI (PW2) In short the plaintiff's case is as that PWl is a businessman residing in Arusha. She sometime in 2008 became a Special Seats Member of Parliament of the Parliament the United Republic of Tanzania for Arusha Region. Under that capacity on 27/3/2008 she was supposed to attend the Parliament's Committee Sitting held at the PPF Tower herein Dar es Salaam as it is evidenced by the Parliament's letter with Ref. No. PF/MB/1378 of 17/4/2010 produced and admitted in evidence marked as Exhibit Pl. She came to the Tower for the purposes indicated. As she was proceeding to the building's lift she fell down. This resulted from the flour being slippery and sloppy. Nothing at the place was placed to warn her of such a condition of the flour. She cried for assistance when two security men came and called for her driver. Again she got the assistance of her fellow Members of Parliament and two Prime Minister's Security Guards who attended her leg before she was taken to Muhimbili National Hospital. 3 In the Hospital PWl was admitted at Muhimbili Orthopedic Institute (MOI) for four days. Her leg was operated and there were inserted in it some iron rods. After the four days she was discharged and went on attending treatments for a year before the iron rods were removed away from the leg. According to the Medical Report prepared and tendered in evidence as Exhibit P2 by PW2 who admitted PWl in MOI and conducted the surgery upon her the patients' leg could not heal at 100%. In evidence PW.1 added that after the iron rods had been removed from the leg a year after being inserted she proceeded with physiotherapy every time she gets an opportunity of coming to Dar es Salaam. From the injuries sustained she cannot now kneel when worshiping as she used to do. She cannot well deal with her mineral business since she cannot walk climbing mountains for the business. Socially she cannot exercise as she used to do. She being a frequent traveller cannot even easily embark into and/or disembark from transport equipment as she used to do. PWl further told the court in evidence that from the injuries she suffered losses. First she could not attend Parliamentary Sessions so could not earn in that respect for sustaining her life. Secondly she could not do her businesses for she cannot now walk to the business cites. The Building at which she got the accident and sustained the injuries belonged to the PPF. The PPF authorities visited her in hospital where she was hospitalized. The owner of the building is responsible for he did not lead her where to pass and where not to pass. There were no warnings even by the two guards she met there at the building. PWl prays the court for the following reliefs:- 4 1. Payment of Tshs. 40,000,000/= being the sitting Allowance she missed for 60 days she could not attend Bunge Sessions from the sickness. 2. Payment for medical expenses amounting to Tshs. 20,000,000/=, the parliament had paid for. The amount should be compensated for it is the first Defendant who caused the injury. 3. Payment of Tshs. 200,000,000/= general damages for the pains the plaintiff suffered, she is suffering and that she will suffer from the permanent disability caused from the accident. 4. Interest at commercial rate of the claimed sum of Tshs. 400,000,000/=. 5. Costs she has incurred in this matter. On being cross examined by Mr. Daimu, PWl contended that it was her first time to visit the PPF Tower. Therefore, she did not know the place to stop and disembark from the car. There were no warning signs that one should not go through the place she was passing. The day was rainy and that she was putting on friendly and flat shoes. As the place was sloppy one could expect that rough tiles should be used instead of those slippery used ones. PWl also told the Court that she came there at 9.30 for the meeting that started at 9.00 am and that she was not in a hurry the fact that could have contributed to the accident. As to her businesses she has business license and Income Statement which is confidential. PWl also added that the Parliament of the United Republic of Tanzania was responsible for her treatment and the sum she is claiming for the treatments is for the Parliament which does not claim for it. The claim for 5 Tshs. 400,000,000/= damages is for her plans which were discor:itinued following the accident. Again on being cross examined by Mr. Mhagate, PWl contended that there was no importance of producing her cash flow to support the claims. The National Insurance Corporation (NIC) paid her Tshs. 12,000,000/= in respect of an Insurance Policy that covered her for which she was paying for premium. She was not paid by the NIC for the PPF had insured the Tower with it such accidents. PW.1 also admitted to have been paid Tshs. 14,500,000/= which NGORONGORO said was for the insurance policy. She was however not aware of the kind of the policy. On being cross examined by Mr. Swai, PWl stated that· she saw many people passing through the door she slipped down. It was the rear door which gives access to the building from the car park. On the floor there was no any warning sign and she did not see if there was slop. Not all persons that passed there slipped down as she did. For the whole period she was sick, the plaintiff was paid her salary. In defence the Defendant's case is made of the testimonies of AUGUSTINO PAULO (DWl) and GREYSON GODFREY MDEMU (DW2). DWl works with the PPF as the Estate Property Manager. He told the court that as the plaintiff chose to use a vehicle to her destination, she ought to have gone to the 5th Floor Car Parking. Instead she disembarked the vehicle and used the way that could not take her to the intended destination. She did that in a hurry and the rain was pouring. DW2 who worked with the PPF from 2003 - 2012 knows the plaintiff in this matter. He said on the material day the plaintiff fell down and got injured at the PPF Tower 6 Building. He came to the place only to meet the victim has been taken to the Hospital. The two witnesses (DW2 and DW3) contended in evidence that the victim encountered with the accident at the place towards the Staff Toilets and the machines room. On the floor there are tiles type of which is put in all lobbies of the building. They are not slippery ones. At the place there is a sign board showing the places to go through in case of fire and where are the fire extinguishers. There are also signs showing directions to t_he parking and speed limit. There is also caution board to the effect that the place has a slope. The place further is not meant for the public members but for the staff or internal people. The members of the Public enter into the building through the main entrance and whoever comes for conferences enters through the entrance to the conference building. Before entering the lift to the conference room one has to be registered. Whoever comes to the conference with a vehicle there is a car park in the 5th Floor. The sign to boards are conspicuously put to allow people see it and that the place has the bright light. On the basis of this evidence DWl and DW2 prayed the court that it dismisses the suit with costs. The witness (DW2) was recalled when the court visited the scene upon request by the Defendant. At the seen the witness showed to the court the location PWl had disembarked a car. At the place there are signs to direct drivers to their parking destination. The road to the parking turns right and there is at the place the guards' station. Straight from where DWl disembarked there is a corridor to a certain junction. One side is to the toilets and the other to the fire escaping directing to the lobby where 7 there is a lift. The corridor is sloppy with slightly slippery tiles. There is a signboard in yellow colour which provides for a caution "Slippery Floor". At the scene the court· also was shown the car parking reserved for the conference participants. Leading to the parking we used the Lift. From the lift to the parking there are steps with a rough surface and there is a door to the conference room from the parking. Again in defence NTIMBA NINDAGIE BUNNY (DW2) testified in favour of the First Third party. He is the NIC Non-Motor Vehicle Business Manager. The NIC is the insurer of the PPF as well as the NGORONGORO NATIONAL CONSERNATION AREA (NNCA). The PPF has the Public Liability Policy with the NIC in respect of the PPF Tower Building. The PPF Tower has also been insured as such by the HERITAGE INSURANCE COMPANY. As regards to the· NNCA it is insured with the NIC with a policy which covers to Group Personal Accident (Management, Staff and Board Members). DW3 knows the plaintiff from the claims she brought to the NIC through her Insurance Brokers. It was alleged that the plaintiff HALIMA MAMUYA got injured at the PPF Tower Building after she had fallen down from the negligence of the building's owner. DW2 contended that the place the plaintiff had fallen down was safe and that she fell down not from the defendant's negligence. As to the claim for Tshs. 420,000,000 for treatment costs and general damages, DW3 told the court there is no truth in it. The plaintiff was paid a sum of Tshs. 4,500,000/= for the injury through INTER TRADE EXPRESS LTD being Group Personal Insurance under NGORONGORO Group Personal Account. The plaintiff was also paid Tshs. 10,000,000/= as exgratia 8 payment under the Public Liability without an admission of the liability as on the part of the insured there was no negligence established against him. The payments were effected and the plaintiff accepted it as it is evidenced by a letter with Ref. No. IEL/GEN/HM/O1/11 of 27/6/2011 which was produced and admitted in evidence marked as Exhibit D1. As there was no any negligence on the part of the insured the plaintiff should bear her costs. Last is PLACID SIMON MCHOMBA (DW.4) who testified in favour of the Second Third party. DW3 works with the HERITAGE INSURANCE COMPANY as the Claims Officer for about 5 years now. By 2008 there was an Insurance contractual relationship between PPF and the Second Third Party. They had an Insurance Policy valued at 40% to run from January to December 2008. In the policy (the public liability policy) there was also the NIC which had the remaining 60% value. The policy was to cover them against the proven negligence liabilities. The award in this regard depends on what the court has ruled out. During the policy period the Second Third Party did not receive any claim from any person. DW4 came to hear of the plaintiff, HALIMA MOHAMED MAMUYA from the information he obtained through E-Mail from the NIC that the plaintiff was claiming for a huge sum of money as compensation. Neither the PPF nor the plaintiff had forwarded their claims to the Second Third Party. Upon getting the information from the NIC the Second Third Party did nothing as this matter had been already instituted in court whose decision is awaited for. That is the whole evidence in this matter. Going by it, I find it is not disputed that on 27/3/2008 the plaintiff came to the PPF Tower here in Dar 9 es Salaam. She, being a member of parliament, came to attend a Seminar organized by the Parliament of the United Republic of Tanzania. It is again not disputed that after she had disembarked the car and as she was walking in one the corridors of the building the plaintiff HALIMA MOHAMED MAMUYA, slipped down and got injured. She was rushed to MOI where she was operated in the course of her treatment. According to PW2 and as it is indicated in Exhibit P2, from the accident she suffered a fracture on her left leg's ankle joint. The injury was about 20% permanent of incapacity. For the days the plaintiff was admitted in the Institute (MOI), she suffered 100% that is total temporary incapacity and partial temporary incapacity of 150% for 140 days. It is also not disputed that the building in question was insured with the Two Third parties. Following the injury the NIC to whom the PPF had the public liability policy in respect of the PPF Tower building paid to the plaintiff a total sum of Tshs. 14,500,000/= through their Insurance Broker one INTERTRADE EXPRESS LTD. Out of the sum, Tshs. 4,500,000/= was paid being Insurance for Group Personal Insurance under Ngorongoro Group personal Insurance Account and a sum of Tshs. 10,000,000 was paid as ex-gratia payment Under Public Liability. The first issue to be determined is whether the plaintiff got an accident owing to the defects of the defendant's premises. In this regard, Mr. Mchome, the learned advocate for the plaintiff submitted that it is in the evidence of the plaintiff that the part of the building the plaintiff was passing through was sloppy so she slipped. There was nothing that the place is slipped. There was nothing put to warn that the place is slippery. According to Mr. Mchome, this evidence had never been contradicted by 10 ' ' the evidence of the witnesses who testified in favour of the defendant. In evidence _DWl told the court that when construction of the building was completed the same was inspected by the "OSHA" who certified that the tower was safe for human use. Again in evidence NTIMBA NINDAGIE BUNNY (DW4) told the court that before the NIC insures a building it sends its experts to inspect it with a view to satisfy that it is safe for human use. This procedure was followed when the PPF Tower was insured. The Court had visited the premises upon request by the defendant. Certainly it was not the place the person who goes to the 5th floor of the building by a car is expected to disembark and use the path, part of which is steep and requires attentiveness when one walks on. The place is slightly slippery and there is a Warning Sign Board to that effect. According to PWl she was required to be in the meeting by 9.00 am and she was late by 30 minutes. It is normal in human beings that one tends to be in a hurry when he or she finds to be late. A person in a hurry cannot even dare to attentively study the environment he is passing through and this is what happened to PWl for any composed person could see the sign board which is conspicuously put at the place. On the balance of probabilities on the evidence adduced I am not convinced to find that it is from the defects of the premises that the plaintiff slipped and fell down and since there was a warning as to the slippery nature of the premises and the fact that given the circumstances of the visit the plaintiff was not expected to go through the area she used I am in inclined to borrow the findings in the case of LONDON CRAVING DUCK CO. V/S HORTON (1957) ACT 737 that:- 11 r. J, ''Notice to or knowledge by the visitor of the risk provided he recognized the full significance of the risk was sufficient to exculpate the occupier if the requisite degree of knowledge was brought home to the visitor his claim was equally defeated whether he freely and voluntarily under took the risk or not" As the plaintiff's accident was not due to the defects of the defendant's premises, this suit cannot succeed. The accident in my view occurred in the circumstances that the First 3rd Party found the plaintiff being covered by the Insurance Policy between the Defendant and him; hence effected payment under the policy. In that premises, this matter stands unsuccessful and it is therefore dismissed with costs. Dated at Dar es Salaam; this 16th December, 2016. rO~ E. J.'Ml<Jsimo{9;; JUDGE 16/12/2016 12 Date: 16/12/2016 Coram: Mkasimongwa, J. For the Plaintiff: Mr. Emesu (Advocate) For the Defendant: Daimu (Advocate) For the 1st Third Party: For the 2nd Third Party: Mr. Daimu (Adv): I am for the defendant also holding briefs of the Miss Barnabas and Mr. Swai for the 1st and 2nd Third Parties respectively Court: Judgment delivered in Chambers this 16th day of December, 2016 in the presence of Mr. Emesu (Advocate) for the plaintiff _ and Mr. Daimu for the Defendant also holding brief of Miss Barnabas and Mr. Swai, counsels for to 1st and 2nd Third Parties respectively. Right of Appeal is explained. c~ E. J:-M~as~wa JUDGE 16/12/2016 13