joshua m nyamwesa vs charles adamu another 2009 tzhc 159 25 june 2009

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA FfC. CIVIL APPEAL N0.10 OF 2008 (Originating from the District Magistrate Court of Musoma Civil Case No.3 of2006) JOSHUA M. NYAMWESA........................APPELLANT Versus 1. CHARLES ADAMU 2. BAHATI I. LUGUMO .RESPONDENTS RULING MACKANJA. J: It was fairly 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 27th 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 own plea of guilty and was sentenced to three years imprisonment. He did not specify the traffic offence to which the second defendant pleaded nor did 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 three years 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 motor 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) a sum of Shs.2,237,000.00; (b) 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; (c) 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 what PW1 stated in his evidence Charles Adam (PW1), the plaintiffs, decided to institute civil proceedings against the first defendant after the latter refused to pay compensation. He went on to 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.5,000/= 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 driving to Buhare to collect gravel when they were asked to render assistance to a person whose motor vehicle had broken down. That they pout marks on the road, probably as a warning 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 thdugh he succeeded in prosecuting all his claims. The first defendant was aggrieved by that decision, hence this appeal in which he has raised six grounds of appeal as follows:- i 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; 4 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; 3. 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; 4. 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. that the trial 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, made the case for the appellant. 5 He argued the grounds of appeal seriatim. When arguing the first ground of appeal Mr. Mutalemwa, learned counsel, * submitted that the provisions of Order VIIIA 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 VIIIA rule 3(1) to support his arguments, namely:- "3(1)...In every case assigned to a specific... magistrate, 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, mediation, arbitration and such other procedures not involving a trial..." Learned counsel 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 the .Interpretation 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 shall be interpreted to mean that the function so conferred must be performed" Mr. Mutalemwa submitted that in law a court is duty bound to 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 law the parties are at variance, and shall thereupon 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 appeal it is Mr. Mutalemwa's contention that the proceedings reveal that the 2nd Respondent was never served with the 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. Mutalemwa, 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, 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.2,237,000/=, 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 proved 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. 9 As regards the sixth ground of appeal it was Mr. Mutalemwa's contention that it is well settled principle of 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 follows:- "... 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 failed 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; (a) the grounds of appeal be upheld; and (b) 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 him I quote his written submissions in extenso. He argued that:- "...the appellant is seeking the indulgence of this Court to dislodge the finding and decision of the trial in 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, J in PAUL NDERA &OTHERS Vs GIBEWA, HC Civil Appeal No. 18/2005, Mwanza Registry (unreported), at page 5 that "in response to this argument Mr. Makowe, for the Respondent submitted and I share his 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 ...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 NDIKOJEJE Vs R (CAT) CRIMINAL APPEAL NO. 238/2004, TABORA REGISTRY (unreported) (at pgs 7 - 8 of the computer print of the copy of judgment),* 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 always, as it said "On the Other hand, this Court in i several its decisions has held that the use o f the term "shall" does not always mean that there is a mandatory requirement. It all depends on the circumstances o f each, particular content ort case". 12 The Magistrate is also faulted for not drawing issues on the first day of hearing. Your Lordship, the trial Magistrate who finalized th e 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 2nd Respondent did not anyhow affect the rights of the appellant who is seeking to dislodge the finding of the trial magistrate. The second respondent was served. There is an affidavit of the Process Server to that effect. 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 trimmed from 15,000= to 5,000= per day. We think from such evidence, the cited authority, ZUBER1 AUGUSTINO Vs ANICENT MUGABE (1992) TLR 137 (CA) is distinguishable and not applicable in the circumstances of the case at hand. We pray that this ground be dismissed too. If It is our submission that grounds 4,5, and 6 of the memorandum of Appeal are all related and dependent to each other. The case was. proved to the required standard in civil cases; on a balance of probability and that damages were equally proved for the accident was never disproved. The other car involved in the accident belonged to the appellant. He never denied that fact. That the car affected belonged to the 1st Respondent and was for business was for business was not only pleaded, but also proved. In totality we pray that the appeal be dismissed with costs and the judgment and decree of the trial court be upheld and left to stand. 14 The foregoing were submissions by learned counsel for the appellant and by the respondent. I have given careful consideration'of the arguments and the law which is applicable. The law may be found in Orders VIIIA and VIII B. Nowhere in those orders is it stated that non compliance therewith shall lead 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. Mutalemw*a, 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:- "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 and'a ' day for the hearing is fixed in accordance with the provisions of rule 15 of Order VIII, on the day so fixed for hearing, the parties shall be in attendance at the court­ 15 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, 16 "Those'which 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 final 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 reasoning the fourth, fifth and the sixth grounds of appeal succeed. Consequently, the appeal is 17. 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. JUDGE At Mwanza 25/ 6/2009 Date: 25/6/2009 Coram: Hon. Mackanja, J For Appellant: Mr. Mutalemwa, Adv. 1st Respondent: Present 2nd Respondent: Absent B/Clerk: Makole delivered before the above named people. J. M. Mackanja JUDGE 25/6/2009 18