HOGLA STEPHEN LAISER VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL APPEAL No. 18085/2024 (Originating from the District Court of Arusha at Arusha, in Civil Case No. 40 of 2023) HOGLA STEPHEN LAISER..................................... APPELLANT VERSUS JUBILEE ALLIANZ GEBNERAL INSURANCE COMPANY TANZANIA LTD................................................ RESPONDENT JUDGMENT 11th & 18th February 2025 KAINDAJ The appellant was a plaintiff before the District Court of Arusha in Civil Case No. 40 of 2023. He sued the respondent (by then defendant) for compensation of a total of TZS. 32,400,000/= being loss incurred following the road accident which resulted into destruction of the appellant's motor vehicle made Toyota Rav 4 with registration number T 923 ECP insured by the respondent and the costs for hiring private transport. The accident is alleged to have occurred on the 20th May, 2023 at TFA area, Arusha Region. 1 | Page Following the disposal of the said case before the District Court of Arusha, it was ordered the appellant to be paid the following reliefs; TZS 10,142,000/= being special damages; an interest of 7% at court rate per annum on decretal sum from the date of judgment till full and final payment of the decreed amount; general damages at TZS. 500,000/= as well as the costs of the suit. The genesis of this matter is that; on the 20th May, 2022 at 13:00 hours the appellants motor vehicle was involved in a road accident at TFA area on Arusha - Dodoma Road and was badly damaged. The appellant informed the respondent/insurer regarding the occurrence of the said accident and the required insurance details was filed. The damaged motor vehicle was taken to Auto Garage called Banda where the damage was assessed at TZS. 20,500,000/=. It is on the records that, the damaged motor vehicle was thereafter taken to Phil Tec Ltd, an Insurance Motor vehicle Assessor who was endorsed by Banda Auto Garage and whose assessed the damage at TZS 9,503,500/=. The appellant was dissatisfied with the assessment the reason that triggered him to knock the doors of Arusha District Court. He did not succeed hence the appeal before the court. 2 | Page The appellant has raised 8 grounds of appeal. The hearing was by written submissions. The parties adhered to scheduling order. However, before dealing with the merit of the grounds, this court, while composing the judgement, it came across a crucial legal issue which needs to be determined. The court noted a contravention of Section 123 of the Insurance Act, Cap 10 of 2009 on the requirement pertaining to insurance claims to be instituted before the Insurance Ombudsman. Under the Ombudsman Regulations, G.N. No. 411 of 2013, all complaints filed by Insurance consumers against insurance registrant with the value below TZS. 40,000,000/= has to be filed before the Insurance Ombudsman. On 11th February, 2025, this court recalled the parties to address it on the matter. The appellant was represented by Mr. Julius Kessy while the respondent had the services of Mr. Moses Mahuna, both learned counsels. On this point, Mr. Mahuna readily conceded that the suit ought to have been referred to the Insurance Ombudsman in accordance with Section 123 of the Insurance Act. He further submitted that, the trial District Court determined the matter without being seized with jurisdiction. He prayed for the court to strike out the appeal. On his part, Mr. Kessy was at one with Mr. Mahuna that the trial court had no jurisdiction to hear and determine the matter. 3 | Page The Insurance Act, No. 10 of 2009 establishes bodies for resolving insurance related disputes as in the matter at hand. The established organs thereto are the Insurance Ombudsman and the Insurance Appeal Tribunal. In terms of Section 122(1) of the Insurance Act (supra), the Insurance Ombudsman resolves disputes arising between insurance consumers and insurance registrants' business in Tanzania. For the purpose of clarity, Section 122 (1) reads; 122. (1) There is established Ombudsman Service for the purposes of resolving disputes arising between insurance consumers, and insurance registrants' business in Tanzania. The procedures of dispute resolution and those of challenging the decision of the Ombudsman is set out in the Regulations made under the Insurance Act. According to regulation 20, the disputes regarding insurance have to be filed before insurance Ombudsman and not otherwise. The decision of Ombudsman is the one which is challenged before the Court of law by way of reference, the regulation stipulates that; 4 | Page 20 "A complainant who is aggrieved by the decision of Ombudsman shall make reference to the High Court in accordance with the provisions of the Act." In the case of Farida Saggin Lukoma vs Zuberi Bus Services, Civil Appeal No. 146 of 2017 (unreported), this Court (Banzi, J.) was confronted with the same situation and she had this to say; "It is my firm view that, Ombudsman was not established for decoration purposes but rather it was established for the purposes of resolving insurance disputes among them being the appellant's complaint. Therefore, it was not proper for the appellant to file a normal suit at the Resident Magistrate's Court after being dissatisfied with the payment given by insurance company. In my view she was supposed to submit her complaint to the requisite body established by law to deal with such complaints". In this case and based on the position of the law as it stands, it is clear that the appellant/ plaintiff wrongly and improperly instituted Civil Case No. 40 of 2023 in the District Court of Arusha. He was bound by Section 123 of the Insurance Act (supra) to refer the matter at Insurance Ombudsman. The District Court ought to have rejected the suit. That said, it is my considered view that, the trial court's decision lacked focus. The appellant was supposed to submit his complaint to the Ombudsman before calling to the court of law. It is my considered opinion that where the law provides for a forum for determining a certain type of cases, such type of cases are to be filed in the provided forum. In the case 5 | Page of Heritage Insurance Company Limited v. Abihood Michael Mnjokava, Civil Appeal No. 1 of 2020, this court, (Masara, J.) quoted with approval the holding in the case of Parin A. A. Jaffer and vAnother v. Abdulrasul Ahmed Jaffer and two Others [1996] TLR 110 that; "Nevertheless, I prefer the view that it is a good policy which may be extended to analogous situations. This is out of the recognition that the rule is meant to check the overcrowding of legal actions in the courts of the higher grade. Thus, where the law provides extra-judicial machinery alongside a judicial one for resolving a certain cause, the extra-judicial machinery should, in general be exhausted before recourse is had to the judicial process" Having found that the trial District Court tried and determined the matter in violation of the provision of Section 123 of the Insurance Act, the appeal before me cannot be sustained. I find no good reason to discuss the grounds of appeal as presented. For the herein above reasons explained, I hereby quash and set aside both the judgement and decree of the trial District Court. Any interested party is at liberty to file his claim at a proper forum. Since between the parties there is no one to blame for what happened, I order each one to bear own costs. 6 | Page DATED at ARUSHA this 18th February, 2025. S.J. KAI ND A, JUDGE. 18.2.2025 7| Page