issac minja vs tanzania electric supply company ltd 2014 tzhc 2288 28 february 2014

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 21 OF 2005 ISAAC MINJA.............................................................. 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 22nd 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 22nd 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 first issue is in 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. Whether the said injuries are liable to be atoned for by payment of damages. 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 Kurasini area, Minazini Street, Temeke District, Dar es Salaam Region. 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 defendant from his monthly Salary. He was paying Tshs 50, 000/= per month. On 17th 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 whether or not his properties were being thrown out by anybody. He went there and met some people and a policeman. He asked the policeman as to what was happening. The policeman informed him that they were executing a Court Order. He took photographs of his properties which were thrown outside his house. These involved his households which included four deep freezers, two refrigerators containing 1, 050 litres of milk which got spoilt. His milk which got spoilt is estimated at Tshs 482, 500/ = . It was 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 plaintiff rushed to the said Court to find out as to whether or not it had issued an Order to evict him. When he reached there, he was informed that there was a Court Order to evict him from the house he was co ccupying following 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 it to the people who were carrying out the eviction. After seeing the stop order, those people allowed him to re- occupy the house from which his properties were thrown out. Later, in 2002 and 2003, he was summoned 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 17th 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 not in dispute also that prior 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 the 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. The defendant company defended itself by saying that its entire management was not aware of the eviction Order issued by the District Court of Kinondoni 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) for vacant possession of the house in 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 in 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 plaintiff from harassment by third parties. Thus, the second issue is answered in the affirmative. The third issue is whether or not the plaintiff 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 howTmuch damages he suffered in the following few lines. First of all, most of his households were damaged during the eviction process. If you look at the photographs (exhibit P I) 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 plaintiffs grand children. Four Roman Catholic Sisters are standing outside looking at those house lolds with sympathy. Some men are simply gazing at those properties. This supports the plaintiffs testimony that his households such 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 freezers 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 damages 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 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 premises 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 what 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 taxing officer of, this Court. JUDGE 28/2/2014 11 Delivered in open Court this 28th day of February, 2014 in the presence of Mr. Nyange for the plaintiff and Mr. Wandiba for Mr. Msefya for defendant. ■? i . // 4? £# JL C— \ ___ f e h , 1 ArShangwa. J V, M$£,. 4 t.JUDGE \ € ® g fil 28/2/20.14