2014228 TZHC Dar es Salaam

,... 1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 21 OF 2005 ISAAC MINJ A,. •••• ......................................................... ~ •••• PLAINTIFF. V TANZANIA ELECTRIC SUPPLY COMPANY LTD ....... DEFENDANT- JUDGMENT Date of last Order 3/1/2014 Date of Judgment 28/2/2014 A.Shangwa, J . This case was presented for filing on 22 nd February, · 2004. The plaintiff is represented by Mr. Nyange, Advocate and the defendant is represented by Mr. Msefya, Advocate. Hearing of the suit started on 22 nd August, 2011. Five issues were framed and recorded by the Court for determination. They are as follows and I quote:- 2 1. Whether the defendant as Land lord- had ·a legal· duty . · to protect the plaintiff a tenant from harassment by · third parties. 2. If ·the ·fir~t issue 1s · 1n the affirmative whether the . ·defendant was in breach of that dutv .., . 3. Whether as ·a.· result of the said · breach· if any• the . · ··· plaintiff suffered damages. 4. vVhether the ·said injuries are liable to be atoned for by· payment of darnages. 5. To what reliefs are the parties entitled thereto. Before determining the aforesaid. issues, let us look at · the facts of this case. They are as follows:- The plaintiff is a retired public .servant who worked with the defendant namely Tanzania Electric Supply Company (TANESCO) for many years between 1965 and 2003 in different capacities. At first, he worked with the defendant as electrical technician and later he was 3 , promoted to the· post of. chief safety superintendent.· He .was residing in a _certain house on plot No. 37 Kur:asini area, Minazini Street, Temeke District, -Dar. es ..Salaam . .- Regiori. He resided in the said house for a period of 28 years. Seven years _.prior to his retirement, he used to -•. reside in that .house -as tenant on monthly basis.· The rent was being deducted by the, defentj.ant from his montply Salary. He was paying Tshs .50, 000/= per month. .. ' On 17 th April, 2002 while he was in his Office at . Ubungo· area Dar es Salaam some one telephoned• him and informed him that some civilians and policemen were removing his properties from his home at Kurasini area and throwing them. outside. He then rung to the . Office of the Company Secretary and to the Director of Personnel and Administration and to the Office of the Deputy Managing Director ( Operations ) in order to find out as to whether there was any problem concerning that 4 house. _All of· them replied that· there was no problem. The ·Deputy· Managing Director, Mr. Msowoya advised · · him to go to his· home at Kurasini and confirm .as .tO · .. ,vhether. or not his properties were being thrown out by. anybody. He went there and met some people .and a:_ police1nan. He asked•· the ·policeman as to what was, .. happening. The policen1an infor111ed hin1 that they were . •executing . a Court Order. He took photographs of his properties vlhich were thrown outside his house. These• involved his households which , included four deeo , L freeze.rs, two refrigerators containing 1, 050 litres of milk which got spoilt. His milk which got spoilt is estimated at Tshs 482, 500/=. It ,vas milk for sale as he was doing·. milk business. After being informed by the Policeman that they were executing the Kinondoni District Court Order to evict him, the plain tiff rushed to the said Court to find out as to whether or not it had issued an Order to evict 5 · him .. When he -reached there, he w,as- informed tpat there · :was •a Court -Order to evict him_ from the house ,he ,was co · ccupying fallowing · a • case between Salum · Mohamed ~Muhsin and his employer TANESCO (defendant).-·He then ,. prayed the· Court' to intervene in the situation. The Court ! :intervened.: A "stop· Order ·was issued. He" ·took i it to: the . ..people ,who wefe · carrying au t the eviction..- After seeing . . : 'the~ house -from ·which his· -properties were thrown' ·out. . : Later, ih. 2002 and 2003, he was .s1imrhoned by·the police at Temeke two times and charged with criminal. trespass in that house. The above ·mentioned facts are not in dispute. For instance, it is not in dispute that on 17 th April, 2002, the plaintiff was forcefully and without notice evicted from the house on plot NO. 37 Minazini Street, Kurasini area, Temeke District, Dar es Salaam. During the course of his 6 .· eviction, his . properties were thrown out. Some. were · · broken· and some got lost. It is :pot in dispute also that priior to . the date ·. of the incident, he had lived in that house for a period of 28 years. It is not in dispute as well that his eviction was by order of the District Court of · · Kinondoni obtained by Salum Mohamed· Mohsin against the defendant. In addition to that there is no dispute that the act of throwing out- his properties from his .· rented house caused a lot of embarrassment to him. · . Let me now start to determine the issues before Court. On th~ first issue, 1 am of opinion that the defendant had a duty to protect. the plaintiff a tenant from being humiliated and embarrased by third parties as it was done in this Case. The plaintiff had no fault on his part. He was paying rent for the house he used to reside in for · many years by deducting it from his monthly salary. 7 •· The defendant company defended itself by saying · · that·its .entire management was not aware of the ev:iction •.:... Order issued by the District Court of Kin0ndoni against . , .·the plaintiff. In my view, this defence is not true. Why am I saying so? This is because before- filing. a suit against ,· .TANESCO (defendant).Jor vacant possession of the house ·. jn issue, Salum Mohamed Mohsin . issued. a• demand ;· .notice to TANESCO (defendant) and the District Court of Kinondoni could not have acted as ··it did without good reason. I think therefore ·that the defendant's officers . · were negligent in following up the case which was filed · by Salum Mohamed Mohsin against them. ·Their failure to do so caused the plaintiff to be evicted from the house he used to reside 1n which· caused a lot of embarrassment to him. Thus, I answer the first issue in the affirmative. Having answered the first issue in the affirmative, the second issue turns to be easy. Without hesitation, I 8 hold that the defendant· breached his legal duty to protect the plain tiff from harassment by third parties. · Thus, the second issue is ansvvere~ in the affirmative. The third issue is vvhether or not the plain tiff suffered damages as a result of the defendant's breach of his duty · to protect him from. harassment. From ·the evidence on· record, it is . undeniable that the plaintiff -suffered damages. Thus, the third issue must be answered in the affirmative. I will show how much damages he suffered in the following . few lines. First of all, most of his households \Vere damaged during· the eviction process. If ·you.look at the· photographs (exhibit Pl) which he took on the day of the incident, it will be seen that most of his households are scattered outside the suit premises. They appear to be in a real mess. Two small boys are standing outside and are wondering as to what was happening. These small boys are the plaintiff's grand children. Four Roman Catholic Sisters are standing outside looking at 9 , those house lolds with sympathy.: Some men-are simply· gazing at those properties. This supports the ·plaintiff's · testimony that his . households sucl1. as beds, .,deep · .freezers, refrigerators, TV, washing machines, dressing table, book shelves, sewing machine, electric cookers · were broken. That his milk which was in the fre½zers ·. estimated at Tshs 482, 500 / = was spoilt. Having found on . the third issue that the plaintiff suffered damages, I now go to the fourth issue. On this issue, the Court is called upon to determine as to whether the injuries he suffered are liable to be atoned for by payment of damages. In my opinion, the plaintiff is entitled to both specific and general d~mages for atonement of the injuries he suffered. Thus, the defendant has to pay the plaintiff as follows:- One, Tshs 472, 500/= being the value of 1, 050 litres of his milk which was spoilt. Two, Tshs 15,000,000/= for the house holds which were damaged or even lost during the 10 eviction exercise. Three, Tshs 15, 000,000/= for loss of milk business. Four, Tshs 20,000,000/= as general damages for anguish, trauma and ·pain because of being humiliated by throwing his properties outside the house he was residing in and for being summoned twice at the · Police Station, Temeke to answer charges of trespass at the suit pre1nises while he was not -a trespasser. This disposes of the fourth issue which ·is answered in the affirmative. ·. -:. The last issue to be determined is to vvhat reliefs are the parties entitled thereto. In my view, the plaintiff is entitled to both specific and general damages as above mentioned plus costs of this suit to be assessed by the . ' 11 - Delivered in open Court· this 28 th day of February, 2014. ·in· the presence of Mr. Nyange for the plain tiff and Mr. ·\\Tandiba for 1V1r. _Iyfsefya for defendant. Ar~hangwa. ~- '('JUDGE 2'8/2/2014.