managing director kilimanjaro truck co ltd vs enifa kajumba 2010 tzhc 422 17 june 2010

IN THE HIGH COURT OF TANZANIA AT DAR BS SALAAM CIVIL APPEAL NO. 182 OF 2007 (Originating from Civil Case No. 377 of 2006 dated 17/8/2008 at Kisutu Court of the Resident Magistrate) MANAGING DIRECTOR KILIMANJARO TRUCK CO. L T D .............. APPELLANT V. ENIFA KAJUMBA ....................... RESPONDENT Date o f last Order : 23/3/2010 Date o f Judgment : 17/6/2010 JUDGMENT Shangwa, J. In this case, the Appellant was aggrieved by the decision of the Court of the Resident Magistrate at Kisutu in Civil Case No. 377 of 2006 dated 17th August, 2007. There are four grounds of appeal that have been raised by the Appellant in challenging the decision of the lower court mentioned above. They are as follows:- 1. That the trial Magistrate erred in law and facts in holding that the Appellant was dully served. 2. That the trial Magistrate erred in law and fa ct in awarding a compensation o f Tshs. 20,000,000/=. 3. That the trial Magistrate erred in law and fa ct in relying on a bear statement that the Appellant did not cooperate with the insurer. 4. That the trial Magistrate erred in law and fa ct in awarding costs o f the suit to a fixed amount o f Tshs. 5,000,000 / = without any taxation. First of all, let us look at the background of the Respondent’s pleadings before the lower court. It is as follows: On 1/1 /2004, the Respondent was travelling from Kyela, Mbeya Region to Dar es Salaam in the Appellant’s motor vehicle with Reg. No. T. 496 AAT make Scania Bus which was being driven by one Salim Simon. This motor vehicle was involved in an accident along Morogoro road at Vigwaza area in Dar es Salaam. The said driver died in the accident. The Respondent sustained severe injuries and got admitted at Muhimbili National Hospital where she was detained for treatment. As a result of those injuries, her left arm had to be amputated. So, it was amputated. It is for this reason that she sued the Appellant praying that the Respondent who is the owner of the bus should be ordered to pay her compensation of Shs. 20,000,000/= for loss of her arm and Shs. 30,000,000/= for loss of expected income and general damages. The trial Magistrate proceeded exparte and entered exparte judgment in favour of the Respondent (plaintiff). Before proceedings exparte, the trial Magistrate Ms H. S. Msongo, RM found that the Appellant who was the defendant in the lower court had been duly served to appear. Her finding is the subject of the first ground of appeal on which this court is called upon to decide as to whether or not her finding that the defendant was duly served in correct. The basis of her finding is found at page I of her typed judgment where it is stated inter - alia that there is an affidavit of the court process server to show that the defendant / Appellant was duly served on 22/12/2006. I have gone through this affidavit. It shows that the summons was served by the court process server one Salum Edward on the Director of the Appellant Company in person. It also shows that the summons was served on him on 22/12/2006 requiring him to file his Written Statement of Defence within 21 days but he did not do so. On 16/1/2007, the court decided to proceed exparte. It so proceeded on 20/2/2007. In my opinion, as there is proof of service, it is of no use for the Appellant to blame the trial court for proceeding expate. Also, as there is proof that the summons was served on the Director of the Appellant Company in person, the argument by counsel for the Appellant Mr. Maleta that the summons was improperly served at Ubungo bus Terminal instead of serving it at the Appellant’s Head Office at Msasani Mwenge where the Director works has no point. I think therefore that the first ground of appeal has no merit and it fails. In her decision, the trial Magistrate ordered the Appellant to pay the Respondent compensation of Tshs. 20,000,000/= for permanent incapacity of having lost her left arm which was amputated due to the injuries she sustained as a result of the Bus accident. Learned counsel for the Appellant submitted that the amount of compensation which was ordered by the trial court is not justified. He contended that there was no proper medical report to show the percentage of the extent of incapacity and the amount payable as compensation. With respect to counsel for the Appellant, I think that with or without the medical report, the fact remains that the Respondent got injured in the Bus accident and as a result of the injury, her left arm was amputed. You can imagine the extent of the incapacity where one’s arm is amputed. When this happens, one remains with only one arm. The incapacity is permanent. For instance, in cases such as this one where one’s left arm is amputed leaving him or her with the right arm only, he or she cannot push or pull anything which requires both hands. He or she cannot clean himself or herself, wash clothes, cook meals, dig, play games or drive a motor vehicle. In fact, one’s physical outlook changes and friends start shunning away from him or her. I think therefore that the trial Magistrate did not err in awarding the Respondent compensation of Tshs. 20,000,000/= which is neither small nor big. At page 3 of her typed judgment, the trial Magistrate observed that the Appellant (defendant) did not cooperate with the insurance company or join it for indemnity purposes. Her observation is the subject of the third ground of appeal. Counsel for the Appellant argued that the statement by the Respondent that the insurer told her that the Appellant does not show cooperation is hearsay and that the court should not have relied on it. In my view, the trial Magistrate’s observation which is the subject of the third ground of appeal did not form the basis of the trial Magistrate’s decision. Therefore, whether or not her observation was based on hearsay evidence, it does not matter. Now, let me resort to the fourth ground of appeal. At page 4 of her typed judgment, the trial Magistrate ordered as follows and I quote:- “ Costs o f this suit be paid to a fixed amount o f Tshs. 5,000,000/= Tshs ( five million Tshs) be paid by the defendant to the plaintiff. ” Learned counsel for the Appellant submitted that the role of a trial court is just to make an order for costs and that according to procedure a bill of costs has to be presented in court for taxation by the taxing officer. I entirely agree with learned counsel for the Appellant on this point, and I hold that the trial Magistrate erred in law by ordering that the Appellant should pay the Respondent a fixed amount of costs to the tune of Tshs. 5,000,000/=. Thus, the fourth ground of appeal succeeds. As I have already mentioned, the 1st, 2nd and 3rd grounds of appeal have no merit. I therefore disallow this appeal on those grounds and I allow it on the fourth ground of appeal only. Each party to bear its own costs in this appeal. Moreover, the Respondent sued the Appellant in forma pauperis. So, she did not suffer any costs. 17/6/2010 Delivered in open court this 17th day of June, 2010 in the presence of Mr. Muganyizi for the Respondent who is also holding brief of Mr. Kambo Advocate for the Appellant. £<r— N'— - A.Shangwa JUDGE 17/6/2010