20190913 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA I • DAR-ES-SALAAM DISTRICT REGISTRY AT DAR-ES-SALAAM CIVIL CASE No. 232 OF 2014 KENNETH VONA KAWIA ................................................ PLAINTIFF AND TANZANIA ELECRIC SUPPLY CO. LTD .......................... DEFENDANT JUDGMENT 31 /8/ - 12/9/2019. J. A. De- Mello, l; Kenneth Vona Kawia, the Plaintiff herein, is enjoying the services of Counsel Msemwa has filed this suit against the Defendant Tanzania Electrical Supply Company Ltd. (herein popularly known as, TANESCO) whereas; Nancy Mapunda Advocate, the in house legal Counsel, fends for the Defendant, claiming in as far as paragraph 3 of the Plaint for; " .. .payment of the sum of Tanzanian Shillings Two hundred ninety eight million four thousand six hundred forty shillings (TShs. 298, 832, 640 / = being compensation on the value (construction costs) ~ e Plaintiff's house guttered by fire 1 j, ' caused by the defendant's negligence and the sum of Tanzanian Shillings Two Hundred thousand (TShs. 200,000 / =) per month from 14th of December 2011 to 14th December, 2012 being rent paid by the Plaintiff as an alternative residence. The above, is also well featured in his prayers for Judgment and, Decree inclusive of costs and, any other reliefs, that, the Court deems fit and, just. The Defendant has, in his Written Statement of Defence, categorically disputing almost all of the contents of the paragraphs from the_ Plaint but, of interest is total decline of liability as observed from paragraphs 2, 5, 7 & 12. Ttie hearing was based on issues framed way back on the 20 th of June 2017 by Hon. Mruke l; as hereunder; 1. Whether the cause of Fire is Electricity? 2. If the first issue is in the affirmative whether the Defendant were negligent? 3. If the second issue is in the affirmative, whether the Plaintiff is entitled to the amount claimed or any part thereof? 4. To what Reliefs a~e Parties entitled? 2 This being the position, the matter for hearing commenced on the 2 nd of October, 2018, two witnesses for the Plaintiff's case, namely; Zawadi Mbogela and, Raina Haule Linga PW2, a Tenant and, a neighbour, respectively. I took over the matter from Hon. Luvanda l; who was privy to hear the first two witnesses, following his transfer, and, proceeded with Kenneth, the Plaintiff and, owner of the house, as PW3. Other than usual background stories of his occupation and, ownership of the gutted premise, his testimony with regard to the claim commenced with a two phone calls he received from the two previous witnesses PWl & PW2 for disconnection of power at his premises. He then called one Hamisi, allegedly an employee of Tanesco, . who seemed to be aware of the disconnection but, not within the Plaintiffs houses but, at another neighbour's house. He promised him to look into the matter and, revert back. It was Zawadi, PWl who then called and, informed that, Tanesco have arrived and, power is back. As this was settled, soon thereafter, PWl called again informing that, smoke is coming out of the same source where Tanesco had disconnected. She hurriedly rushed to have them back but, confirmed to her that, they are rushing to switch off the Transformer. But alas, with no time, th~re house was on fire perishing, into a~hes. 3 Upon his arrival, PWl informed him that, it was one Henry Madebe who removed and, left with the Luku meter. The matter was then reported to Tanesco Mafinga Branch, where the Manager Ema Mbwilo was encountered. Her response was that, by nature of the damage, presumably above TShs. 10 million, she had no mandate to deal with and, approve unless the Regional/Headquarters approves. However, and, to his surprise the Regional Authority categorically declined liability despite good cooperation and assurance the Mafinga Manager extended. His claim, is as indicated above justifiable by Sketch Map and, Construction Agreement with a Company known as Lucky Construction which formed part of the Plaint under paragraph 5 annexed as 'll' collectively. Not objected, it was admitted and, marked exhibit Pl. Other than this specific claim is, annexture 'J6' under paragraph 13 for a one (1) year rented accommodation he had incurred. Similarly, it was tendered and, admitted, marked exhibit P2, having not been objected. Let alone legal costs, anguish, embarassment, and, loss of residence. With this he had to source a loan to bring back sobriety. On cross examination, PW3 insisted source of fire was nothing else than tempering by Tanesco's staff by d i ~ i n g power and, abrupt re-connection <!this 4 residence. He however, alluded to the fact that, while sharing the same service line with others in that vicinity, they never were affected. When cross examined by Counsel Farida from the Defendant with regard to have reported at Fire Rescue Brigade, he admitted not to and, don't have any Report from them. He even confirmed not to have any evidence of the damage caused and, its extent. On re examination PW3 stated fire in as far as seen by the neighbours sparked from electric pole connecting power in his residence. This done, the defence took their turn, summoning DWl Hamisi Jumanne Mngonji an electrical technician from Mafinga since 1991. His evidence revolved on the information of fire that, he received on the 14th of November 2011 at around 3:00 - 4:00 pm. Power from Transformer was disconnected while heading there to find two house owned by the Plaintiff, one wrongly installed and sourcing power illegally from the other. In as far as the findings, fire started from one of the bedrooms where meter was disconnected using a sharp object. The LUKU was even missing and, only to be told it had been taken by the Plaintiff himself. Preliminaries revealed source of fire was illegal and incompetent wiring'. not by Tanesco. ~ing from a technical perspective, the burning 5 of the main switch was a result of the larger fire and, not the source. He informed the Court of photos taken as he further expounded on the installation process for power in clients residences, demarcating the lines for each party, i.e Tanesco and Client. In essence, he pointed out that, basic connection falls within Tanesco, while wiring is by client and, highly recommended to be by a qualified electrical technician. He declined to have someone in the name of Henry Madebe in their office. Next was Erasto Mgimba similarly, an electrical technician with Tanesco Mafinga. He has been central in working on Budgets for power distribution, emergencies and, safety. He admits to be duly informed by DWl, of the incident at Kinanyambo B Mafinga and, one who instructed to switch off the Transformer. On arrival and as preliminaries, all the Tanesco's infrastructure was not damaged meaning the central line medium voltage line, low voltage line, poles, overhead service line, lead in wire, meter and cutout. On inspecting the premises, findings revealed illegal connection of wring based on installing less of 1.5 for lightning and, 2.5 milimeter for sockets, whose ultimate outcome, was overheating them being below standards. The connectivity and directly from the old house to the new one, without official surv~ntrary to the initial contract that the two had 6 in 2009 for the first old house, was tendered exhibit D1 was admitted in that endeavour. The Plaintiff ought to engage another independent survey and contract for the new house, he noted. Following this visit, a Report was compiled and not objected and admitted as exhibit D2. He shared the details narrated for cause of fire to be; (i) Illegal connection by sub standard fittings notwithstanding the second building being large hence greater consumption. (ii) The house was for renting with Tenants in occupancy (iii) Meter and cut out missing (iv) No sign of fire at the meter and found intact (v) Wire connecting was of 2.5 milmeter removed and, by force using sharp weapon (vi) Fire started from room without switch socket not even light (vii) No worker from Tanesco was officially engaged involved or assigned (viii) motorcycle in the corridor probably fueling fire 7 (ix) Fire started from inside and, not outside. Photographs were taken reflecting the damage and real situation at the scene, as a result of fitting sub standard wires and, may be from un licensed contractor. In so doing, the Plaintiff and at his own peril, breached clause 2 & 9 of Agreement for avoiding Tanesco's blessings. Aware of this, he opted not to report to Fire Rescue Brigade and Police, again for reasons known to himself. On cross examination DW2 admitted not to know the Plaintiff that well, despite seeing him around Mafinga township. He acknowledged not to have measured the wires but by looks and his experience, they were below standard less milmeters that, are supposedly required. These were connected to a junction box to the room which was not wired, same one which badly destroyed. Just hanged in a holder for lighting. He was not able to recall whether the local government leaders around were involved. As for Henry Madebe, DW2 confirmed to know him as a private vendor for electrical fittings in Mafinga township and, not present at the scene, on that day. On re examination, DW2 insisted the need for Expert Report and for none other than the Fire Rescue Brigade. It was the old house that, was gutted down. After recess, the Court resumed at 12. .m with, DW3 Magige Jackson Mahula 8 an Engineer, specialized in fire safety and, a Manager, then when he served Tanesco prior to his secondment to Julius Nyerere Hydro Power Project formerly known as Stigglers Gorge, since January 2019. He too came into knowledge of the incident in Kinanyambo Mafinga of which the Plaintiff's residential house was gutted by fire. Being in command as Safety Manager, and, working on the Report that was shared, he even visited the scene way late after it happened in 2015. Coming from that background, and experienced enough, five causes of fire were enumerated to be; 1. Negligence through Human nature 2. Friction of machineries in factories/industries 3. Chemicals explosion 4. Spontaneous fire on its own 5. Overloading from electrical fittings, refrigerators/freezers, pressing iron, cooker, kettles, fans, AC's, phones, heaters and adapters to mention just a few. He went on narrating how the electric power system operates from the Transformers to meters anct/4ostly from external rather, outside, while pointing out that source~ in as far as the report from his office; Tanesco, was sub-standard wiring. He discarded the claim to be unfounded and, baseless. He confirmed not to be part of the investigation team and, not based in Mafinga then but, visited Mafinga late when things were already back to normal. On re examination and, to put record right was the fact that, such and similar incidences had to land on his mandate as Safety Manager for Tanesco. Written submissions by the Defendant alone is in place and basically responding to the issue framed as follows; Whether the source of fire was electricity? In a lengthy but evasive manner, Counsel Nancy concludes that, source of fire is not by sparks due to negligent reconnection of electricity by the Defendant's employee. For her, the above was answered in the negative hence rendering the second issue as to Whether the Defendant acted negligently does not suffice. Source of fire as a result of Plaintiffs poor wiring as opposed to the Defendant's infrastructure that remained intact. She made reference to Customer service Manual page 7 part E (i) (j) to bring to light parties rights and obligations in ~ion of power. Last on Whether the 10 Plaintiff is entitled on Reliefs as prayed, Counsel Nancy and based on the above position, categorically disputes any entitlement in favour of the Plaintiff. Failure to summon the contractor on which exhibit P1 is established for the cost of constructions for the gutted premise. The amount and specifically pleaded is speculative she alludes, considering PW1's testimony that, it was made of clay bricks and other local materials that are not that costly. In absence of proof as required by law under section 110 of Cap. 6, the suit is with no merits and, ought to be dismissed. No submissions from the Plaintiff as already stated and, I will proceed with all that was in pleadings, evidence and, defendants submissions. From the above analysis of the evidence, I embark my discussion based on the first issue that of Whether the cause of fire is electricity? With all due respect to Counsel Nancy for the Defendant and noting her evasive assertion, the dispute at stake was and clearly so as a result of electricity. In absence of fire report, evidence from PW1, PW2, PW3, DW1, DW2 and DW3 all alludes to the gutting as a result of electric shot. Whether by negligent o n j of the Plaintiff or otherwise is subject 11 analysis in answering issue number two. Exhibit D2 speaks louder of what caused the fire, to be electricity fault as a result of the listed causes. The truth will set us all free and does no harm in agreeing that if it wasn't for electric fault fire would have not arose. Answered in affirmative, then the second issue that of; Whether the Defendant was Negligent, I would commence by referring the case of Karisa & Another vs. Solanki & Another [1969] E.A. 318 to the effect that. negligence is largely a question of fact as it had been held; To prove negligent must be established that there was sufficient evidence from the Plaintiff's witnesses that the damage to the Plaintiff's properties was caused by the Defendant's negligence. It is even trite law from section 110 (1) of the Tanzania Evidenc~ Act Cap 6 (R.E 2002) "for one who alleges must prove". The Plaintiff, one moving the Court, bears this sole duty as he apportions faults and, bl~mes towards t~e Defendant. This duty never shifts. can we safely then conclude that ,!t~e caused by electricity was out of the ';}- 12 Defendant's fault? The answer can be drawn by evidence from PWl, PW2 & PW3 the trio and, not experts and without any expert documented report from a relevant authority the Fire Rescue Brigade to be precise, whose evidences remains highly speculative. None of them managed to explain what exactly happened that lead to fire other than pointing finger to an alleged official named Henry Madebe to be around, disconnecting the Luku and, disappeared. Not an employee of Tanesco as evidenced but, an independent electrical contractor, his presence to testify could easily save the day for the Plaintiff's case, while rebutting the Defendants position. His absence and quite central here, raises eyebrows. On the · Defendants part and, with a Report at hand, backed up by expert testimonies, it is evident fire from electrical fault was from sub-standard wiring fittings as reported by the Defendants. Similarly, was exhibit D1, the 2009 Agreement for electricity installation and, Clients Service Charter for the first house but, none for the second. The logical inference and, certainly so, in absence another Agreement for the second house, established to have sourced power illegally from the first house following poor workmanship. Negl'.~~ alleged, falls back to the Plaintiff, as opposed to the Defendant~- 13 How then can the third issue be determined. in favour Plaintiff considering the above not in his favour? Much as damage had been caused, the house and, as evidenced by both into ashes, absence of proof by the Plaintiff for cause of fire and negligence leaves him in limbo. The construction costs for new house and, not as a result of the Defendants negligent is, sadly even misconceived. It has nothing to do with the Defendant, let alone the author for Lucky Construction, the contractor to appear and substantiate the details. BLACK'S LAW DICTIONARY, 8 th Edition at pg. 419 defines; Special Damages as: "Damage that are, alleged to have been sustained in the circumstances of a particular wrong. To be awardable, special damages must be specifically claimed and proved." The Dictionary also defines "General Damages" at p. 417 as: "Damages that the law presumes follow from the type of wrong complaine of. General damages do not need to be specifically claimed." 14 • .. In Masolele General Agencies vs. African Inland Church Tanzania [1994] TLR 192, the Court of Appeal of Tanzania, held; "Once a claim for a specific item is made that claim must be strictly proved, else there would be no difference between a ·specific claim and a general one ... " In that case, the Court of Appeal refused to accept the Appellant's mere ·statement of loss of business, in absence of any documentary evidence. Apparently and all along, the Plaintiff has completely failed to substantiate and, link his claims in relation to the loss and damages allegedly upon the Defendant's negligence. However in Asquith C.J in Victoria Launary vs. New Men [1949] 2 KB 528 at page 539 observed; "Damage are intended to put the plaintiff in the same position as far as money can do so, as if his right had been observed" I hastening to award, the Reliefs sought by the Plaintiff in his prayers for the mere reason~ he is maker of his own frolic and at his own peril. 15 • In fine, the Plaintiff has failed to establish the case to the required standard that Civil matters demands, that of Proof on Balance of - Probability as, I consequently dismiss the suit with costs. I _accordingly order. J.~ JUDGE 13/09/2019. 16