20090625 TZHC Mwanza

ffr ci IN THE HIGH COURT c .FTHE UNITED REPUBLIC OF TANZANIA INtH E bISTRIcT REGISTRY • AT MWANZA flC. CIVIL APPEAL NO.10 OF 2008 (Originating from the District Magistrate Court of Musoma Civil Case No.3 of 2006) JOSHUA M. NYAMWESAIIIII....I.II..II.II.IIIII.IUAPPELLANT 1.CHARLESADAMU 1 Versus . 2. BAHATI I. LUGUMO soon*@ .......,..RESPONDENTS RULING MACKANJAVJ , . It was fah- ly common ground at the trial that Joshua M. Nyamwesa, who featured as the second defendant at the trial, was the sole proprietor of a lorry, referred to in the proceedings as a tipper, with registration number of T 249 ABE of the Isuzu type. He 'employed Bahati Luguma, the second defendant, as the driver of that lorry. On the other hand, the plaintiff owned a saloon .car, Toyota Mark II with registration number T 259 AGE. it is also common ground that the two motor vehicles collided on 27 th May.,. 2005 while' the second defendant was driving the first defendant's . lorry. As a result of that .accident the second defendant was, according to the testimony of the plaintiff, convicted on his ownplea of guilty and was sentenced to three years imprisonment. He did not specify the trafflc offence to which the second defendant pleaded nor d.id he tender in his evidence a certified copy of the proceedings. I have, while scurrying through the record of proceedings, stumbled on a case file which; is entitled Misc. Civil Application No.56 of 2006 (Arising' From District Court Civ. No.(sic) 3/2006). A certified copy of the proceedings in Traffic Case No.11 of 2005: R v. Bahati Lugumo is filed therein. According to those proceedings the accused faced two counts of traffic offences; he pleaded guilty on the first count. He pleaded not guilty on the second count. It is on the first count that he was sentenced to threeyears imprisonment. The charge on the first count was causing bodily injuries through careless driving of a motor vehicle contra sections 41 (1) and 6 (2) Of the Road Traffic Act. The second count which he denied, charged him of causing damage through careless driving of a Thotor vehicle contra sections 42 (b) and 63 (2) (b) of the said Act. Be that as it was, the plaintiff, brought a suit against the defendants as a result of that accident He claimed the following reliefs: a sum of Shs.2,237,000.00; a sum of Shs.15,000.00 per day being loss of business from the day of the accident; he did not specify the duration of that claim; costs; and 2 (d) any other reliefs the trial court would be minded to grant: In his testimony, one Richard Sima (PW2), the plaintiff's driver, gave his version of the facts as to how the accident occurred. He stated that as he was driving from a place called Buhare Social. Welfare Institute the first defendant's lorry approached him form the• opposite direction; it swerved to his left and. rammed into the car he was driving. The two passengers he carried suffered bodily injuries; hence the first count. We are not told what happened to the charge in the second count. .. . . . .: Apart from recounting whet PW1 stated in his evidence Charles Adam (PW1), the plaintiffs, decided to institute civil proceedings against the first defendant after the latte refused to pay compensation. He went onto say, as recorded at page three of the typed copy of the trial court's proceedings - "I claim the sum of Shs.2,237,000/= being damages resulted (sic) from the collision. My car was for . business, I earned Shs.5,O.OQ/= a; day..." At the time of the accident one Philipina Nyamwesa (DW2), the first defendant's wife, was on board their lorry. According to her testimony they were drivin.g to Blihare to collect gravel when 3 * I they were asked to render assistance to a persoc whose motor vehicle• had broken doWn. .That they pout marks on the road, probably as a varning sign to other road users. That as they were about to tow that other motor vehicle two buses passed by. That suddenly the, plaintiff's car, which was in high speed, rammed underneath the near side of the first defendant's lorry. Eventually traffic policemen were called at the scene and performed their duty. Kamuli Paulo (DW3) who was on board the first defendant's motor vehicle gave testimony which is identical to that of DW2. It was upon that evidence that the trial court found fOr the plaintiff and awarded him a sum of Shs.2,237,000.00 as prayed in the plaint and a sum of Shs.5,000.00 per day being loss of business. For no reason that was given by the. trial cOurt the plaintiff was denied costs of the suit even thOugh he succeeded in prosecuting all his claims The firstdefendant was aggrieved by that decision, hence this appeal in which he has raised six grounds of appeal as follows:- 1. that the learned trial Magistrate erred in law and in fact for determining the case to his finality withoUt • conducting the first pre-trial settlement and • scheduling conference as required in law; V. 2. . that the learned trial Magistrate erred in determining the case without fixing the case for the first hearing session with a view of framing and recording issues as required in law; that the learned trial Magistrate erred in law and infact in not dismissing the case as the first respondent failed to serve a court summons to the second respondent as required in law; that the learned trial Magistrate erred in law and in fact in awarding damages of Tshs.2,237,000/= being the alleged repair costs as the said sum was not expressly pleaded and specifically proved by the first respondent as required in law, 5 that the learned trial Magistrate erred in law and in fact in awarding damages of Tshs.5,000/= per day -being loss of business as the said sum was not specifically proved; 6. thatthetrial learned Magistrate erred in law and in fact in not dismissing the case as the first respondent • failed to discharge-.the burden of proof on all the • • • allegations as pleaded and reliefs prayed for as well. The appeal was argued by way of written submissions. Mr. Mutalemwa, learned counsel, mad the case for the appellant. He argued the grounds of appeal seriatim. When arguing the. first ground . of appeal Mr. MutalemWa, learned counsel, submitted that the provisions of Order VIllA of the Civil Procedure Code, [Cap 33 R.E. 2002] make it mandatory for the trial court to: conduct the scheduling session and accordingly subject the parties to the mediation process. He quoted the provisions of Order VillA rule. 3(1) to support his arguments, namely: - • "3(l) In every case assigned to a specific. ... magistrate1 a first scheduling and settlement conference attended by the parties or their recognized agents or advocates shall be held and presided over by magistrate within a period of twenty-one days after conclusion of the pleadings for the purpose of ascertaining the speed track of the case, resolving the case through negotiation, mediàtión, arbitration and such other procedures not involving atrial..." Learned c ouns el supplied the emphasis. As learned counsel correctly pointed, out the proceedings do not show that the parties had ever attended to the first scheduling and settlement conferences. He'observed that the non-compliance which he has raised invalidates the trial court's proceedings. He wrongly cited the provisions of section 53(1) of theJnterpretation of Laws Act, Cap.I R.E.2002 in support of this argument. Subsection one 6 relates to the application of the term "may" It is subsection (2) ( . from which he quotes which. is relevant to his argument. It states. thus:- . .. . . "53(1) Where in a written law the word. "shall" ... is used in conferring a function, such word shaII be interpreted to mean that the function so conferred must be performed" Mr. Mutalemwa submitted that in law a court is duty bound th frame and record the issues on which its decision will depend and such issues may be amended and other issues added before passing the court's decision. He cited Order XIV rules 5 and 5(1) to support his views. I think it is rule 1(5) which relevant because rule 5(1) depends on rule 1(5). Order XIV rule 1(5) provides thus:- "5(1) At the first hearing of the suit the court ... shall ascertain upon what material proposition of fact ... or of the Jaw the parties are at variance, land shall thereuppn proceed to frame and record the issues on which the right decision of the case appears to depend" . . ., .. . As I understand learned counsel, failure to frame issues, which is mandatory, has dealt a fatal blow on the trial court's proceedings. The foregoing arguments have taken care of the 7 first two .grounds of appeal. As regards the third ground of r appeal it is Mr. 5 Mutalemwa.'s contention that 'the proceedings reveal that the 2nd Respondent was never served witithe Court Summons. The proceedings read at p. 2 as follows; he .quotes; "Court: this is the defendant who refused to be served, so never refused to be served so never refused summons I got him in court on 18.07.2006.. 1st Defendant says I didn't serve one with such notice so never refused it. [Emphasis is Ours]. Therefore, inferentially, the suit ought to have been dismissed on this ground too. Mr. Mutaiemwa, learned counsel, began his arguments relating to the fourth ground of appeal by quoting the following expert from page three of the trial court's proceedings, S that is to say:- "As a result of this case I filed this case. Earlier I tried to inquire the defendant on how he was going to pay damages but he refused. I claim the sum of Tshs.2,237,000/= being damages resulted from the collision..." [Quoted verbatim] In arguing the fourth ground Mr. Mutalemwa, learned counsel, submitted that the first respondent failed to prove the damages he claims. He stated that although there is an invoice marked as annexure "B" to 'the plaint en-titled "Invoice" worth Tshs.2 1 237.,000/=, the said invoice was not tendered in the court as an exhibit by in proving repair costs which,, it 'was alleged. were incurred towards repairing the car. . He cited the decision of the Court of Appeal, Hon. Ramadhani, J.A. as he then was who stated in Zuberi Augustino v. Anicet Mugabe, [1992] TLR 137 (CA) at p.139 that:- ". . . It is trite law, and we need not cite any authority, that special damages must be specifically pleaded and proved ... " Learned counsel made the case that in the premises, the alleged damages by way of repair costs were not specifically and strictly prove.d by the first respondent as required in law. On the same parity, it was argued for the appellant that the first respondent failed to 'prove the loss of business because he failed to adduce any substantIal evidence documentary or oral in proving that his daily business profit stood at Tshs.5,000/= per day at the time of the accident. That all he said was this: "My car was for the business I earned Tshs.5,000/= a. day. Hence I claim such amount from 27.05.2005 todate..." . This covers the fourth and fifth grounds of appeal. As regards the sixth ground of appeal it was Mr. Mutalemwa's contention that it is well settled principleof law of evidence that whoever alleges must prove his case. He finds support in the provisions of section 110 (1) of the Evidence Act, Cap 6 R. E. 2002 Which stated as follws:- "...Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist..." In the end Mr. Mutalemwa, learned counsel, submitted that the first respondent faile.d to discharge the legal burden of proving his claims pertaining to the alleged repair costs incurred on his car and the alleged loss of income as well. He, therefore, prayed that; the grounds of appeal be upheld; and. the judgment and the decree of the trial, court of Musoma District be quashed with. costs. . The first respondent argued the appeal on his own.. In order to do just to :hirn I quote his written, submissions in extènso. He argued that:. "...the appellant is seeking the indulgence of this Court to dislodge the finding and decision of the trial 10 • court on issues as raised in the memorandum of • appeal. However, going through the judgment and reasoning of the trial Magistrate, one will find that he cannot be faulted anyhow". The appellant is alleging that there was no pre-trial scheduling and settlement conference. Your Lordship, this is a • procedural requirement. We agree to it. But one has to ask himself that does such a failure occasion injustice to any party to the. proceedings, and as to whether such a flaw of procedure will affect the substantive justice that parties crave for. This takes us to a trite interpretation of low that procedural lows should not defeat justice. It is our submission that such a legal principle should be relevantly and effectively applied in circumstances of this nature particularly where the rights of the parties are in way at stake despite the failure in procedure. In this regard we ask the Court to take the views Of SUMARI,) in PAUL NDERA &OTHERSVs .GIBEWA, HC Civil Appeal No. 18/2005, Mwanza Registry (unreported), at page 5 that 'Yn response to this argument Mr Makowe, for, the Respondent submitted and I share 171s views, that failure to conduct ADR cannot vitiate proceedings as the same is an irregularity which does not affect either case in so far as substantive stands' 11 4 ..We pray that this ground of appeal be dismissed. Although the Appellant's Counsel has tried to 'convince this Court that the word "shall" is used in the provision that introduced the rule (of scheduling a conference) implies mandatory observation of same, we do not buy, his views. We ask the Court not to side with him in that respect; and should rather Interpret the word, otherwise, regard being had to the effect that respect; and should rather interpret the depends on the circumstance, and that with the situation at hand, such interpretation is likely to lead to ambiguities and injustices much to the dismay of the administration of justice and will defeat the purpose of the legislature! In SALUM NDIKOJE)E Vs R (CAT) CRIMINAL APPEAL NO. 238/2004 1 TABORA REGISTRY (unreported) (at pgs 7— 8 of the computer print of the copy of judgment),4 the Court of Appeal considered the effect of the use of the word shall in s.53(2) of Cap 1, the interpretation of laws Act RE 2002 (a provision relied upon by the appellant to show that the use of shall means mandatory), the Court resolved that the word does not mean mandatory ahays, as it said "On the Other hand, this Court In several its decisions has held that the use of the term "shall" does not always mean that there is a mandatoiy requirement. It all depends on the clrcumstaAces of each, part/cu/ar content ott case ' 12 The Magistrate is also faulted for not drawing issues on the first day of hearing. Your Lordship, the trial lylagistrate who k: flnaIized'the. matter saw this irregularity. He framed the issues for determination. One question rises here, does failure to draw issues on fist day of hearing but at a later stage, issues drawn and resolved for determination, failure to frame them or failure to comply with the law as cited by the appellant's counsel? Definitely. not. The trial magistrate fully complied with the law. The issues were drawn. He cannot be faulted on that. Your Lordship, we ask this Court to appreciate the reasoning and steps taken by the Magistrate to see to it that the irregularity committed by his predecessor was remedied. Issues were indeed drawn. The submission of the appellant's counsel as if no issued were drawn at all, does not go by the record. Thus we pray for the dismissal of this ground as well. The issue/complaint of non-service to the second respondent. But this cannot be a point to lament to by the. appellant. Non service e to the 2 nd Respondent did not anyhow affect the rights of the appellant who is seeking to dislodge the finding of the trial magistre The second respondent was served. There is an affidavit of the Process Server to that Cifect. We ask this Court to dismiss this complaint as well. 13 The issue of standard of proof has been raised by the appellant's counsel Yet we think the criticism leveled is not worthy believing and moving the Court to find against the trial Court's decision Evidence was offered to prove that the car was used for business. The driver testified. Registration for Taxi Cab was equally put in record as evidence. Your LordshiP, the figure was rimmed from 15;000= to 5000= per day. We think from such ZUBERI AUGUSTINO Vs evidence, the cited authority, stinguishable and (1992) TLR 137. (CA) is di ANICENT MUGABE the circumstances of the case at hand We pray not applicable ifl that this ground be dismissed too. . It is our submission that groupds 4,5, and 6 of the memorfldum of Appeal re all related and dependefl to.: each other. The ease was pro'iéd to the required standard in civil cases; on a balance of probabilitY and that damages were the accident was never disproved. The other . :. e_qialy prpvedfpr 1efl t belonged tothe appellant- Henever car involved in the denied that áct. That the car affected belonged to the 1 Respondent and was for business was for business was not only pleadèd, bUaIs0 ; Pr0 .-•,... .- .. . In totality we pray that the appeal be dismissed with Costs and the judgment and decree of the trial court be upheld and lefttostafl. . . 14 I, • . The foregoing .wee submissions by learned counsel for the V appellant and by the respondent. I have given careful •1.•. .consideraUonof the arguments and the law which is applicable. The law may be found in Orders VillA and VIII B Nowhere in V V' those orders is it stated that non compliance therewith shall lead V. .' to the dismissal of the suit. So although it is mandatory to hold a pre-trial scheduling order, failure to do so does not constitute a fatal irregularity. The first ground of appeal would, therefore, fail. Similarly, failure to frame issues at the commencement of the trial is not fatal either. Order 14 rule. 1 subrule (5) of the Civil Procedure Code makes a requirement to frame issues. It does not go further to say that failure to do so shall lead to the automatic dismissal of the suit. The second ground of appeal would also fail. It is contended by Mr. MutalemWa, learned counsel for the appellant, that the suit ought to have been dismissed because the first respondent failed, to serve the appellant. Provisions relating to service are contained in Order IX rules 1 and 2 which - provide thus:7 "1. When a summons to appear has been issued on the day fixed in the summons for the defendant to appear or where a summons to file defence has been issued anda day for the hearing is fixed in accordance with the provisions of rule 15 of Order VIII, on the day so fixed for V hearing, the parties shall be in attendance at the court- 15 d t. .• . house in person or by their respective recognized agents• or advocate, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the court. 2. Where on such day as aforesaid it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, the court may make an order that the suit be dismissed: Provided that no such order shall be made although the summons has not been served upon the defendant, if on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent". As rule 2 of Order IX clearly states, the decision to dismiss the suit is discretionary, considering that word used is "may". It was upon the defendant to move the trial court, giving reasons why the suit had to be dismissed. This was not done; it cannot be raised on appeal. Consequently I hold that the third ground lacks merit; it would fail, . I now come to the fourth ground. This relates to what, in law, are special damages. They fall into this category because the constitute an item which requires specific proof. According to Black's Law Dictionary, Abridged Sixth Edition, Mi - "Thosewhich are the actual, but not the necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in. the particular case, that is, by reason of special circumstances or conditions. Such are damages, which do not arise from wrongful act itself, but depend on circumstances peculiar to the infliction of each respective injury. In contract law, damages not contemplated by the parties at the time of the making of the contract. To be recoverable, the must flow directly and immediately from the breach of contract, and must be reasonably foreseeable. Special damages must be specially plead and proved". It is not enough, therefOre, state only as the plaintiff said in his evidence as reflected at page three of this judgment. Similarly, the plaintiff had to produce proof that actually he earned a sum of Shs.5,000/= per day from his car. A mere statement that he earned Shs.5,000/=, daily is not evidence upon which the trial court was entitled to find for him in that sum. What is even more, the plaintiff was required to include the special damages as an item in his pleadings. He did not do so. In the filial result, I hold that the plaintiff/first respondent failed to prove his claims. Upon the which are contained in this judgment the first, second and third grounds of appeal one dismissed. On the same parity of repsoning the fourth, fifth and the sixth grounds of appeal succeed. Consequently, the appeal is 17. ,. . 4 allowed in respect of the fourth, fifth and sixth grounds of appeal The appellant shall have the taxed costs of the appeal and of the court below. hãtM.MackanjZ9 JUDGE At Mwanza 25/6/2009 Date: 25/6/2009 Coram: Hon. Mackanja, 3 For Appellant: Mr. Mutalemwa, Adv. 1st Respondent: Present 2nd Réspoñdent: Absent . • B/Clerk: Makole $orrdgSent delivered before the above named peOple. Mackan JUDGE 25/6/2009 b 18