NA TZHC Dar es Salaam 1

.r ! ; I ; 1N THE HIGH COURT OF Tl1.NZANIA CIVIL CASE NO, 27S OF 1992 LADISLl-i.US MKANGiillli. M11.GESSA •••••• PLi1.INTIFF versus ,.. THE ATTORNEY GENErl.AL • 0 e e o. C, 0 0 Cl Cl • • RESPONDENT This is a suit by the plaintiff against the Attorn~y General for damagei for a tort committed by members of the Tanzania People's Defence Forces against the PlaintifJ. The plaintiff i~ claiming for damages totalling 32,Btt,tt•/= ' . plus interest and costs. . The evidence adduced for the plaintiff 1 s ~ase is that·· . ~ .. I . . .t. ~.I·. the plaintiff who.··was a businessman got a tender to 'funi"ig'Jff!e ···' all arm barracks in Mara .region in 1987. Hi~ firm of fumigation, was known as M/S May & Brothers. On 31/11/87, the plaintiff left for Fo~t Ikoma to do fumigation at that army camp. He arrived at the camp at around ~.31 p.m. and ➔ he identified himself at the gate. He was re?~ivGd ~y;he Deputy head of the •3.mp. The plaintiff hacl .guns for hunt- . .. ing, He was allowed to keep the gun.; be&nuse the_ -~rmo~ry could not be opened at that time due to regula tion'o. J... t around 11.45 p.m. th~ Deputy head ordered that he be shown where to sleep.· The plaintiff went ;to hcus.~ no. 45 where he was led for h,is night rest. rt··was ·around 11.4.5 p.m. and the light~ were switched off. 1-~t around 1 a.m . . a soldier called the p_laintiff and asked him abckt his guns. The plaintiff

replied that he had them with _him. Half an hour later the Sergeant Major'who had said earlier that he cculd nqt open the armoury at nigh;_t .1i-r......,i .. ,' ~-~! t<.~ ,,. ;,, i - 2 wanted the plaintiff to open ' the door and to show his guns. The plaintiff obliged and the Serg'eant tock the guns and ordered the plaintiff to follow him. I-; was • then around l.3e a.m. and dark. The sergent was walking fast. The p1aintiff slipped and fell down. This was due to a:tcnes and the plaintiff actually stumbled 011 ~-· '. the sanes and fell down. The plaintiff could not stand up. Before the fall th0 plaintiff haJ ~o proble~Q with his legi. as he was a hunter and he used to paly tennis.- The plaintiff was carried back to the house where he had been sleeping. He was in grGa t pain. When ·t;he h2ad. ct the camp was notified a~ to what had happened, the sergeant who had come for the plaintiff at night was loeked up. The doctors saw the plaintiff and referred- him to Mugumu hospital where he was x-rayed and it was found that the plaintiff had fractured his hip joint. He was referred to Musoma hospital and then airlift~d to KCMCP Moshi, He was admitted in hospital on 19/11/87 and on 17 /12/ 87 he asked tc go home. He was disc.harged. He got the discharge order and the report of the doctor (exhibit P3). He used to attend at the Clinic at KCMC as an outpatient practically every month, But

his •~ndition was' still bad an~ he was referred to Muhimbili Medical Centre, The Muhimbili Medical Centre advised that the plaintiff sho~ld be treated abroad. But ·no funds were· available. Muhimbili Medieal Centre examined J, the plaintiff and produced a report (exhibit P4).• : The plaintiff had wanted eompensation from the gove·rnment of shs,lt.5 million, But the government wanted him to aceept shs.251FIOO/~~ (exhibit P5)o The ~laintiff did not agree with this paltry sum and he decided to· sue the government, While in Mugumu hospital, he wa~ asked ?Ya military officer how he came to fall down. He answered all the questions put to him but he never " said that he had a defeetive knee. He was shown what is termed "Nyongeza B". He denied signing on this document. "Nyongeza B" is_alleged by the defendant to -contain the statement of the plaintiff with regard to how he got injured, The plaintiff produced a copy • 'I . -; of his passport where his signature appears to try (' _, to establ-i.~h that the signature appearing en "Nyongeza !:~ B" was riot his (exh P6). He however admitted signing. , ,. I • 3 { . on a handwritten document •. He denied all that which is e:mtained in "Nyongeza B. 11 The plaintiff went on to testify that before the injury he was doing the business of fumigation under the fir;m name of May & Brothers •. He also had a shop and he was dealing in trophies.

He tendered the trade licence in trophy business (exhibit P7)e He said further that he had an export licence for cattle (exhibit PS). Other businesses were fumigation and building contractor. He tendered his tax clearance certificate which shows ali these businesses (exhibit P9). ~ . The plaintiff had 6 guns according to his testimony and beeause of the injuries he -could not hunt nor do hiQ other businesses. His income tax·asQessment used to be lo2 million shillings for all the businesses. Hi~ claim in this case was for shs.22,910,00•/= being the _''·total loss suffered plus 30~, 001/= as co·-~ts for medical , treatment. For spatial damages he had asked ·for shs. 9,011,101/= being damages for temporal total incapcity - and 'shs/14 million was for special damages for incapacity for 208 weeks at 5(t%. AlT7:Iis claims come to 2!,9•t,o,o/3, and the plaintiff was asking judgment in the same.amount. In defence the defendant had 3 witnesses~ Martin ~ ' Nga lu, a military officer at Fort Ikoma (DoW~l), said that h~ worked in the army and in 1987 he was· at Fort , Ikoma College as the Chief Administrative Officer. The " plaintiif used to do fumigation work in army-~amps and, on 31/11/87, the plaintiff arrived at Fo;t Ikoma College to do fumigation work. JJ.W .1 came to l~-arn· tha·t the plaintiff h~t 3 fir~arms and had come to the 1ollege . ' with a Sergeant Major Nyamhanga who had an

SMG with 21 rounds. D.W.l ordered the duty officer to ensure t • that a11 the weaponry is kept in the 1ollege 1 s armonry. I The;.~',pl,aintiff. ,-·. . was with D.W .1 at the officers I mess~ Thi. soteman brought the~keys ~o the rooms of the plaintiff and Sgt Nya~uhanga i.e. the rooms BJ.located to them for the night. The plaintiff together with a colleague went on drinking K.onyagi liquor and they took some food, At around 1~ p,m,- -D,W,l went to bed, leaving the plaintiff 4 behind still drinking. On the next day the duty officer informed D.W.l that the platntiff wanted D.W,l in his rooI;ll be~$.US~ he had been injured at night. ·n. W.1 fcund the plainttff in pa~ns. D.W.l had the plaintiff taken to Mugum~ hospital. whe~ DoW.i arrived at the hospi~al, . . . . he found the plain.:t.if'.i already x-r.a.ye~·;, The . X'."ix;~y,- "- _ ; t: showed a fracture at the leg joint. Siri6e the plaintiff. . could not be treated . at Mugumu hospital, he was . . taken to Musoma Regionel~Bospital. ~ut t~e plaintiff would npt sleep at the hospital and ·n.W ,1 fcund him at his hom.e .•.. 0 ' • • When D~W.l talked to the plaintiff in his rbom at· Fort Ikoma, the plaintiff told him that he had tripped over and had falled down. The area where·the accident happened had floor made of slates joi~ed•with cement. In cross-examination D,W.f said that the weapons of the plaintiff were not taken tc the

armonry immediately ~fter - :he.had given,the . - •. " or~er for them to be tat~n . thB~e. . . ~ ~ •v . Conesrning .. ., the. liquor . which the plaintiff - took, . ,. ..... .D.W.l ~ said that • the time he w?nt tq bed the plain~iff·had ' ' 1. • 41 f • ' .finished a bbttle of IC:myag;i.. Th~n in his room t}).e . - .... ' •• -t . • •-- ii ... .. , • .., ·, • • • .. , • :Qla~nt~~-~ ~olQ. -~. W~-1 that h~ ~ad ~.r=itp.ped qv~r sor:n~t~l1;1g ~, D;Wp2 Fe:cdiriartd. Macha, a_-sal-dicr at Fort:I-koma College sa'id ·that he was, tt the .'.college in 1987 -as :_the.:~- a:rmQnry storeman •. He knew the plain tif:r who• used ,t.01~ . g.o.;;to .the campl.to. fumigat.e-...:the caF:p, On 30/10/87 .D~W ;2 went'to·get the.:arrncnry keys in company with tlie a.u:ty.· t . officer. Then he went to the armonry which is near the ~fficers 1· mess;· ~ Th~ officer en duty ·asked where the • • ,I. • • • . • .. . pl~intiff •as and'ih~ reply was.that the pl~iritiff·~ad ...,., ., • ~ --f ,·• r • •-: g6n~ to·bed. The ticie ~~s arcund 9 p,m; The officer~ 6n'.'duty :sent f~r the pl.aii'1tiff i:h order :fo~. hini to tAke his guns _to .. the;armonry. But t·he plaintiff dip. not come • •, .. • 4 • • • , f; .. ~ • ' . . . . .) T~eToff~cer _o~ dutyrwe~t.to get the:plai~tiff~ ~fft~r. _: ~~~e~i~e ~~~ o~~~p_~r· _on 9-~ty wa~ calling ~or:· ~t;e, _gut3:rds. at'.~•~~ ~ffi<?~~s~:_~~s~ '1oJ~6 a~d c:-ssi~t;him. ~;W!?

,"t~nt ~itq ~~e_.g~frds to 1wtiere t~-~ offic~r on duty_•wi~i. D.YJ.2 f0und the plaintiff lyi:p.g_ OR the. g:roupd with one: .firearm • ... ~- ... "'_,_... .. ~ .I. , • .' .... • ~ • ~ • ~ • ~ • • • • • • , -· • • " • ,. 1 ' • ~~e _; sff!~et ~~. d\1.-~f h&:,~ thci. ci~~~r .f}~earm._ ·~wo g;u~r.1~t.: •. ·· ( ; ,• .. & .• • • • . /5 T' • J Ill •• • " - 5 earried the plaintiff to the armonry to deposit his g·uns there. The lights at the college were still on. D.W.2 heard the plaintiff tell the officer on duty that he was not badly ·injured and that his leg had problems for· a long time. D. W. 2 said that the area where the pla.in:!.Cff - J •,. fell was flat with stones ·built into the floor. D.W,2 was interviewe·a by Colonel M~usse and a statement taken from this interv'i.ew. D.W,2 r·ead ·1t and signed it, Then the ~tatement wae typed. D.W,2 produced a copy of the statement as exhibit Dl as ·the original ·had been misplaced, at the army headquarters. ·Exh,Dl reads inter a1ia that the plaintiff on being asked whether he should bo taken to hoepital·replied that his lag had been injured a long time ago an:d that it was possible that his leg had. · developed some sudd.on malfunctioning, In cross-examination D,W 2 said that he was not sure of the time of· the hapiienings but that the. lights were ewi t1hed_ off about an hour and half aft.er the plaintifff had fallen down and got

inju:red, He s,1id that the time could not ha,ve been l a,m when the plaintiff was required to surrende:t hi~ weapons, He said further th~t the plaintiff fell down near the plaoe where the ~tcnes are ni~erly arranged. He said in re~examinaticn that the armonry is under g<: ground and cannot be opened' unless ther-e is electricity, . The last witness was Colonel MFUSE',, D, W. 3, He said ' that in 1987 he was at Fort Ikoma·College as an in~trtctor, Then in Nove~ber 1987 he was detailed to make.cummary investigalaons concerning the plainti'ff who'had been innured while at the collegee He interviewed .all those who could give him facts ·as to how the .plaintiff got \. injured,. D.W.3 interviewed Colonel Ngalu, Corporal Ferdinand John and Captain Mustsi and ·one other Sergeant Major, He even interviewed tne plaintiff himself after he had been through with the soldiers. The plaintiff .told him inter alia that he had a ·knee problem for . . a long time and that he often fell down, ·but when he fell down he would go ctown with n.is nand~ on the ground first~ In that ·way he did not get,in-Jl,~ecij-i· But ~h:i's • eca/ 6 6 .... iime because he was carrying guns he could not put his ,. . . .'~it hands on the ground and so he was injured, D~W.3 took .., \, i down the stat:e.zent of the plaintiff whivh was read over I '" ' ,:, to the plaintiff and the plaintiff signed ito The '. statement

was typed and returned to the plaintiff who eompared it with the original and signed the typed statement (exhibit Lt). In •ross-examinaton DeW,3 denied making up any i statement, and he confirmed tha~ the plaintiff signed on exhibit D2, ,.-. ,.·.·1··:· ~ At the end of the case for the defence parties were . ·. .?. expeeted to present to the Court registry written :,~ ., submissions, But none of t_he parties I s advocate presented any submissions. After the deadline had passed I had no alternative but to p1epare this judgment. The first issue is whether the defendant's servant· was negligent, In order to answer this issue it is necessary to decide first whether the plaintiff fell du& to a defective knee and not due to absence of ~ight~ And in order to dec-ide the last points we?;r!n.~!:'t6E •~bide ~~e~~e~.1~h!bi~ D2 was signed by the plaintiff, ·ri other wor·ds, issues 1, 2, 3 and 4 are interconnected. I cannot see how exhi D2 and indeed exhibit Dl can be i~•ored, The plaintiff denies the contents in exhibit D2 although he admits making a statement consisting of questions and answers and signing the same, The signature on exhibit D2 is not on the face of it different from the singatl,i.re · appearing on exhibit P7 which plaintiff agrees to be his, The only major difference is that that on exh, P7 is in full whereas the one on D2 is short showing only the first part. Secondl~

D,W3 has testified that the plaintiff actually made the statement and signed the statement after it had been typed and after comparing it_with the handwritten statement. The plaintiff does not deny making a statement as said earlier. This court should not lose sight of the evidence of D,W,l who saj_d twice in his evidence that. the plaintiff· told. him that he tripped over and fell down· ••.• /7 ·--~~;/·: ~~-~~· "· 7 In Kiswahili this is wha"t ~.W.l said, 11 lilinieleza kuwa i . amejikwaa." Nor should the' C6ur~ lois sight.of exhibit P5 which i's a letter from the Minls{ry of Justice to th~ plaintiff. The letter states inter alia that the Attorney General has at last received facts from the Ministry of Defen•e and National Service and after such fact the ~ . Attorney General has found out that the Government is to blame for the accident which the plaintiff got. The only probltm is the quantum of damages/ compensa tio·n claimed. The letter reads thus in Kiswahili: 11 Baada ya kupata maelezo hayo 1 tumebain_i kwamba Seri°kali ina- wajibika katika ajali iliyokupata, Tatizo peke yake lipo katika kiasi cha fedha ulichodai." The letter goes o~ to state that the Attorney General'~ office I wtll iake the task of advising the Treasury and the· Ministry of Health to give the plaintiff the funds · required for treatment of the plaint~ff, The Attorney General was also to advise the

Treasury ·to pay the plaintifi shs.250,0CI/= as Compensation (kifuta machozi) . I_.!<; for the problems whi'c·h befell him. . Although in paragraph 5 of the written statement of defence the defendant states that the liability admitted in exhibit P5 was that the plaintiff was hurt in Government premises and that the payment wris ~o be ex-gratta, and further that this was not an ad~ission of negligBnre or breach of duty of care on the part of the defendant or both, exhibit P5, which was written by a legally trained pers9~nd a senior lawyer in the Attorney General's Chambers, does not appear to agree with what paragraph 5 of the written statement of defence alle~es~ There is clear admission of liability in exhibit P5 in the words "tumebo.ini kwamba Serikali inawo.jibika katika ajali iliyokupata. 11 If Mrs Ndosi who ~roie this letter intended to say that the government is admitting liability beoause the accident happened ~n government premises she would no doubt have said so. Furthermore, th~ only problem in all this was the guantum of damages claimed and not whether or not the .. ~ .. /s 8 ... government was liG.ble. Hence the words, "To.tizo peke yake lipo katika kiasi cha fiadia ulichod.ai." Because Mrs Ndosi was satisfied after getting facts from the Ministry of Defence and~Nationnl Se~v{e2 that gc.vernment was liabla, she wrote further down that her office would advise the

Treasury and the Ministry of Health to provide funds required for treatment of the plaintiff abroad and furliI.her that her office yvrould advis.,~ the Treasury to pay a token c.:.~l,l:'"C ,.0f.~1:;.eh~<:::15e~~,o/~ ~~y•Jmpensation (kifuta .maohozi). If the facts obtained from the Ministry of Defence were as per exhibit Dl and D2 i.eo that the plaintiff fell down due to sudden·malfunctioning of his kn~e, I doubt whether such a letter would have been written to the plaintiff from the Atto~ney General's I Chambers-. It seems to me that theI evidence of D'.W'.l and exhibit P5 completely contradict the truth or correct- ness of exhibit D2. If exhibt D 2 were the statement made and signed by the plaintiff--"'then I cannot i:;ee w:1y the plaintiff would have told D.W.l th?t he had hit some- thing and tripped and fell down. Nori~an I see how the defendant would have written exhibit P5 in the ~ay· it is written. It follows from the above that exhibit D2 cannot be the statement signed by the plaintiff. ~ will go further and say that even the evidence from the defence witnes&e-s---..Q.,l;}. the various times when· events happened leaves a lot to be desired •. D.W.l estimates the time when .he left the plaintiff at the o offi•erst m~ss to be 10 p~m~ ·But D~w:2 talks of 9 p.m~ as being the time when the plaintiff w~~ said to be in bed. But in cross~examination and in his -~ statement he

comes to between le p.m, and 10.30 p.m. Then £inally the alleged statement of the plaintiff (exhibit D2) talks of about 12 midnight when the plaintiff·was awakened to take his.weapons to the armonry. A~l this goes to show that there cannot be any truth in the defence ,·3.se •· The plaintiff I s evidence that he used to play tennis and that he was a hunter and there was nothing wrong with his legs was not effectively challenged by the defence. Section 112 of the Eiideri~a ~,t states as follows:- The_ burden of' proof as to any partitular fatt lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that far-t shall lie on any particular person.· ' Since the defendant wants exhibit D2 to be taken as a Rtatement of the plaintiff, he must prove that it is a true siatement bf the plaintiff by establishing that it was ,signed by him, Proof of the signature could easily have been made by a handwriting expert. The defendant relied only on the evidence' of D. W. 3 which, I in my opinion, is not enough to establish that the plaintiff signed exhibit D2 in view of the evidence to the contrary. It seems to me thai the story of the plaintiff is the true one and that the plaintiff was awakened in the middle of the night and made to walk under orders in the dark and at great speed. This led to ~ho tripp- ing ov,1r a ston'J a:hd

falling down thereby injuring his l~g. Was the defendant 1 s servant negligent? l would say yes,'be1ause as occupier, the head of Fort Ikoma College owed a duty of care tc the plaintiff who was an invitee/ to sec to it that the plaintiff is not led to areas where he tJuld get injured, Instead of exercising.reasonable case the head of the Colleg~~s subordinate marched the plaio~iff through terrain which had stones and in the dark thereby leading to the plaintiff stumbling and falling down, thereby injuring his leg seriously. And, as I said earlier on, -the defendant admits liability in his letter (exhibit P5) in so many words~ That disposes of issues 1, 2, 3 and 4. Issue noo 3 and 4 must be answered in the negative, whii}; ::.3sue no. 1 is answered in the affirmative and issue no, 2 in the negative& I come to issue No.

5. Did, the plaintiff suffer damage and loss? Here again the answer is in the affirmative. Is the damage and J.oss as stated in para- graph 8 of the plaint. Again I would say yes but I would not go f4-~tbte:{ to accept the q·~antum of damages put \ for eae:i .e3.-'rngory of damage and loss e The amount or" . ·. ./1t - 10 • ll damages for each item can only be determined by this court afte·r a thorough review of the law on damages~· The last issue~ is the usual one naraely the reiief to whi6h the plaintiff is entled~ This is the area where the quantum of damages is determined~-:~s I said somewhere in this judgment·, there were -no ·submissions· made by any of the ~dvocates for the parties which would· nave assisted .ythe court immensely i:µ the deter- . \,. mination ..,of the quantup of damages# I w2.s, ther_efore obliged to do my_own research for the determination of the damages to be awarded to the plaintiff. In the case of Liv?-ngston~=.Y.!.. Raw:y:srds Coal lompany (19~1) 5 Appeal Cases 25 at 39 Lord Black burn had this to say:__ ' .••• "Where any injury is to be Co11pensated by damages~ in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured: or who-had suffered, in the same pc&ition as he would have been in if he had not sustained the wrong for which_he is now

getting his compensation or reparation! 11 11 ~ . In the same •~se Lord Viscount Dunedin observed: The Cowman law says that the dame..geia _ ~~o -either for brea•h of eJntract ·or for tort are da □ages~which,~so far as noney can compensate will give the injured patty reparation for the wrongful act.n In ~he Mediana L191!/ L.•.C 113 Lord Halsbury L •. , ,. had this ·,to say: 11 You very often cannot even lay down any principle upon whir,h you can give damages_. •••• Take the J.:1ost faoiliar and ord..~!.l.al;':v cas.e: hQw is anvbodv · t-o measure paih and suTiering in moneys_ counted? Nobody e:~suggest th2.t you '3.n by any 2.ri thme ·_ 901 ~lcula tion es'tablish 'what is· th!' exactt sun of money which would repre~ent such a thing as pain and suffering ~hich a person has· undergone by reason 6f an accident •••·• But nevertheless the law recognises that as a·topic upon which damages may be gi venc 11 · ----- .. 11 ii The three passages cited above give some guide~ .line as how to ·go about assessing damages for 1nJury . suffered. Then in Smith v Manchester (1974) 17 KI:B.I which appears ..in Kemp and ~e!ll~ 9 the plaintiff who -. 1 •• slipped on some s~bstance deposited on the floor and fell while'~n the cause of her employment as a part- time domestic worker in an old people's home was 1 awarded £230,J as general damages and £2000 for pain '-·"•I and suffering and a further

amount of £1000 for loss \ of future earnings~ The plaintiff was aged 49 and I the ~all made p.er sustain injuries to her right elbow and due to prolonged stopping up she developed a frozen shoulder and mover:rnnt of her right arm was permanently impaired s·o ·that she was under. a dis- ability in her day to day tasks and her normal social . activ:i,.ties ~ . . In Page V Enfield & Haxingey Area Heal, th Authori·t;y reported in "The Times" of June 17, 485, the plaj.ntiff, a muse, sustained back injury and was awarded £9000 for pain and suffering and loss of amenity. Then;\in Farid v Gre·enwich Heal th Author:L t;y also reported in in u Tne.·· Times" of June 17 v 1985 t the plaintiff had an accident which severely injured his eye and the P·laintiff was lef~ with monocular vision :whd.oh . · , severely limited his surgical· expertise · · as_ regi· strar ~ surgeon at Hospita~o He was awarded by tne trial· Court £25,000, ·on·appdal the Court 9f App~a.l held that the sum of ·£25,·Jo was cirrect'fir· lties 1 o( future earnings. · · The above cases give_qs some light on ho~ to . 1 .. ' go abcut making assessment· of damages .. in the case ): befor~ us. The plai~tiff claims shs·o,2Z,OOO,OO-~/= ~ • • ... I as speci~l damages made q.p. as •follows: ..... . ·• \ (1) .· ·medical~ . transpo:r-t and sundry ine;urred" . by plaintiff . ~ for medical trea·ti::-:Y.i. ~- - shs_. 300 r oool=: . '. t I h (2) speoial . damages f o,r loss of., income during'\ temporary iricapaci.ty_at c.o:-% incapacity for\10 · Weeks - -shs·o 600; 000/ = ~ \ \ . \ r·· •••• /12 ---- • 12 - • •·s . ------------ .

63) Special damages for loss of income during permanent incapacity assessed at 50% for rest of active life - shsql4,000,000/=o Then there is an item cf general damages consisting of pain and suffering - shs.2,000,000/= and loss of amenities of life and sporting activittes shso6,000/=Q With regard to tllG special damages, and in parti-•ul.ar ---- ...... concerning medical -'Jransport and sundry expenses incurred by plaintiff for medical treatment, there is not adequate evidence to establish the figure of shs.300 1 000/=, I will allow t,~ sum of shsol50 7 000/= only for th&s ite,:n,. ~e ··o-ther i tern is special damages for loss of ino-ome d~;ing - --, ). temporary incapacityo The figure mentioned is shs~ 600,000/= for 10 weeks~ Here again I do not find e.n.o~h --------•--- evidence to establish that amount. But I would say that the sum of shse30C~OOO/= would be a reasonable amount. I will allow only shs~300,000/= for this item. The-~----- ; tp.ere is special damages for loss of income diJr~ng-p-a.-rtia.l per?1anent incapacd. ty asse.s.s.ed at 5,:·% for the rest of the active life of the plaintiffo The figure suggested is shs.14 million. The plaintiff was running a fumigation - _company known as M/8 May & Bro-thers. He wa~r doing other. __ _ smaller businesses such as.exporting government trophies and shop_business. He was aged around 60 years at the time of the aoc.ident. His

passport shows 28th Jan•ary ., 1928 as the date of birth. The pliintiff was therefore. . ' an old man by Tanza.n.ian,-s-tandards. Active life would depend en a few factors including his health. I would gi-v=-e-.the ylain-ti.f.f 5 years of active life after which period he would be less a'ctive and less producti·va, Furthermore the incapacity is 5C% only i,e. partial and not 100%, This factor has to be taken into ~ccount. '--....,_ In the 1985 case ·of Fai.'i~ r:::.i ted above, the plaintiff was awarded £25,000 for loss of future earnings. This was in England where. the s·tand.ard of li vd.ng is by far higher than-✓ours in Ta_nzania. '. t:.'25,, 000 f..s · equivalent to at least shs., 1.8 tiillion }:n Tanzania to-day~ This is not small a mount cf money, My assessment of the damages wider _., ... ,. ~ •••• /13 II ........ • I ------ - 13 - this heRding would be 10 million shil!ings taking into account all the factors I hav9 mentioned abqvee I will· • award shs .10 million for thiLJ h'ead of damages o •• I <t'ome to the head of damages for pain and suffering • . The amount claimed is shs.2 milliono In Snith v Manchester cited above, the plaintiff was awarded £2,000 for pain: and suffering, physical handicap and interfe~ence with amenities~ And in Page .. ..Y Harringey Area Heal th Authori tx, the plaintiff was awarded £9000 for pain and sutfering and losr: of amenity £9000 is

aroun9- 6,?C0,000 Tanzania shillings today. £2000 is abcu·t 1i million shillings · to-daye I think that shso2 million claimed ,Jor pain and suffering alone is on the highsideo I will all9w shs. 1 ·million only for this he~d. AS for lo~s of amenities of life and sporting activities, I think th·e ~u~ of shs~ 2 million would be adequate ccmpensation bearing in mind C the cases cited above and the age of the plain~iff. I allow shs.2 million for this head of damages. All in the total sum allowed is shs.13,450,000/= Judgment is entered for the plaintiff in the sum of shs.13,450,000/= plus interest at ~ouri ra~~ fiom_th~ date of judgment till ~aymfnto It was held in Prem Lata· . . v, Peter Mussa Mbiyu L1962/ E.A 592 that a plai'ntiff is not entitled to interest on general.damages for the period between filing the suit to date of judgment. In· c ..,., this case none of the damage's can really be callee!. •· 6 • special damages .because there was no evide.nce · to ;, . ' · specifically show ·tha t ij-....c.ertain sum was incurred• in f\ . . ' connection with any expenses. All the damages awarded here are' in the 'nature of general damagesa 'The plaintifr. .. ' • ,,, . J will also have ·his costs~:-· o • ; • • • . ... ,. 1 t,,,' • • 'A! BAH.ATI i.'. • V ' . •• " ' • ) t . .I N ....... ,,--~~ • - • 00 .•• ' • .J. . ' _ _,_ - - · •.