JUDGEMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY CIVIL APPEAL NO 178 OF 20 2024 REF NO 20240104000000178 From Decision of Court of Resident Magistrate of Dar es Salaam at Kisutu Civil Case No. 24 Of 2018 dated 21/09/2023 Hon. Mazengo PRM MARY CHARLES NG’HONELA suing as the next friend of SHARONI CHRISTOPHER and TRIFONIA CHRISTOPHER ............................APPELLANT VERSUS SANLAM GENERAL INSURANCE (T) LTD ...................................RESPNDENT: JUDGMENT 22nd May & 12th July 2024 KIREKIANO J. This appeal emanates from the decision of the Court of Resident Magistrate at Kisutu to be referred to as the trial court. The root of the appellant suit at the trial court is traced back to 21/07/2010. For coherence, I take liberty to recap the events leading to the suit. On that date, two children were tragically knocked down by a commuter bus with registration number T 221 ADF Toyota Hiace. Sharon Christopher lost her life instantly, and the other child, Trifonia Christopher, was seriously injured and rushed to Muhimbili Orthopedic Institute (MOI) 1 for treatment. It is undisputed that the motor vehicle was driven by Steven Kianga and was owned by Augustino Tumsifu Munisi. In traffic case No. 1127/2010, the driver was convicted of dangerous driving. The appellant herein, Mary Charles Ng’onela, standing as a next friend, instituted a suit against Augustino Tumsifu Munisi, the owner and NIKO Insurance (Tanzania) Ltd, the Insurer, claiming against them compensation at a total of Tshs. 120,000,000. In its decision in civil case No. 137/2010, the District Court at Kinondoni dismissed (sic) the suit in want of Jurisdiction. The appellant had another idea; she filed another suit suing the driver, Steven Kianga, and the motor vehicle owner, Augustino Tumsifu Munisi. This was in civil suit number 53 of 2012 at Kinondoni District Court; in its judgment delivered on 17th September 2014, in favor of the plaintiff, the District Court awarded the plaintiff, now the appellant, compensation of Tshs 40 million, as special damages and 48 million as general damages and interest. It is noted here that in civil case number 53 of 2012, the insurer NIKO Insurance (Tanzania) Ltd was not joined as a party. 2 The appellant's attempt to execute the decree was unsuccessful. It appeared there was nothing tangible to attach in satisfaction of the decree. Acting on advice she got, she filed civil case no. 24 of 2018 at the trial court against the Insurer; Sanlam General Insurance (T) Ltd, formerly known as NIKO Insurance Company (T) Ltd. In substance, the appellant's claims before the trial court were to recover a total of Tshs 175,706,666 from the respondent being principal and interest decreed by the district court at Kinondoni in Civil Case No. 53 of 2012, between the appellant on the one hand and Steven Kianga and Augustino Tumsifu Munisi on the other hand. Before I proceed, I also find it necessary to traverse briefly the parties’ pleadings, which are on the record before me. The plaintiff now the appellant stated that, she successfully sued the said driver and owner of the motor vehicle in civil case not 53 of 2012 and that the said vehicle no T221 ADF was insured by the respondent Sanlam Insurance Company. She also stated that she could not sue the respondent directly since she was not privy to contract of insurance. As such, the respondent in civil case not 53 of 2012 was not joined as a party. Thus, the respondent, 3 being the insurer of the motor vehicle, was liable to satisfy the judgment against the policyholder. On their part the respondent in their written statement of defense stated that by virtue of being the insurer as alleged by the plaintiff the defendant ought to be joined as necessary party and or be informed of the institution of the alleged civil case no 53 of 2012. In any case the defendant disputed to have entered into an insurance contract with the owner of the motor vehicle. The following issues were framed and agreed upon to determine the dispute between the parties. 1. Whether the plaintiff had notified the defendant about the existence of the Civil case No. 53/2012 as required under section 10 (2) of the Motor Vehicle Insurance Act Cap 159 R.E2002. 2. Whether the plaintiff was entitled to the claiming amount to the tune of Tshs. 175,706,666/=. 3. If the second issue is answered in affirmative whether the defendant was liable to pay the claimed amount in above. 4. What reliefs are parties entitled. 4 In proving her case, apart from undisputed facts stated above the appellant, said that the respondent was the insurer of the motor vehicle she reinstituted civil case No. 53/2012 after the first case was struck out of which NIKO Insurance had notice. She also tendered a copy of the Judgment and decree in Civil Case No. 53/2012 (Exhibit Pl), a copy of the court ruling of Kinondoni District Court in Miscellaneous Application No. 104/2015 (Exhibit P2), a copy of the ruling in Civil Case No 137/2010 (Exhibit. P3), a copy of the written statement of Defence in Civil Case No. 132/2012 (Exhibit P4) The other witness was PW2 Egnas Edward Mikindo, Eastern Zone Manager of the Insurance Authority. His account was to the effect that insurance sticker No. 2513415 in respect of the motor vehicle involved in the accident was issued by their office to NIKO Insurance Company now the respondent. Documentary proof was tendered as Exhibit P5 collectively. On their part, the respondent case was by DW1 Daniel Sembua, the respondent claim officer. According to him, the appellant lodged the same claim in Civil Case No. 53/2012, of which the defendant was neither informed nor served with the court summons to have an opportunity to 5 defend themselves. He relied on section 10 (2) of the Motor Vehicle Insurance Act [Cap. 169 RE. 2002 denying liability. The trial court held that the plaintiff failed to discharge her duty to prove that the respondent was aware of the existence of the suit, i.e. civil case no 52 of 2012, as required by the law and on the basis of section 10 (2) (a) Act Cap. 169 RE. 2002. Dissatisfied the appellant logged this appeal on the following four grounds, to wit; 1. That the trial magistrate erred in law and fact for holding that the appellant did not notify the respondent in compliance with section 10(2) (a) of the Motor Vehicle Insurance Act Cap. 169 R. e. 2019, contrary to the evidence on record as Exhibit P-4 admitted in court and the respondent admitted to receiving a demand letter from the appellant, the record shows that DW1, during his testimony, admitted that they were served with the notice from the plaintiff and were aware of the legal proceedings in their records. 2. That the Honorable trial magistrate erred in law and facts when she refused to admit the appellant’s demand notice dated 13/09/2010 tendered by the appellant during trial on 24/1/2019 and rejected by a ruling dated 18/02/2019 on the ground of being a photocopy. In contrast, the appellant had 6 complied with the evidential legal requirements, the document itself being a notice of intention to sue. The same was part of the respondent's list of additional documents to be relied upon filed in court on the 6th November 2018. 3. That the Honorable trial magistrate erred in law and facts when she found the appellants claims devoid of merit in the suit for want of compliance of section 10(2) (a) of Cap 169 R. E. 2002. While in terms of exhibit P-4 it was vividly admitted by the respondent vide paragraph 6 of the said Exhibit that by 14th September, 2010 they received a demand note of intention to sue and responded to it by an online email. The appellant met the requirements under section 10(2) (a) of the Motor Vehicle Insurance Act, Cap. 169 R. E. 2019 as there is no formal formula as to how the notice is to be and effected to the insurer (Respondent) which should be either before or after commencement of the proceedings in court, Exhibit P-4 suffices. 4. That the Honorable Trial Magistrate erred in law and facts when she dismissed the appellant's case on ground of want of proof while based on the available evidence on record the appellant has discharged the burden of proof on the balance of probabilities applicable in civil cases and basically the respondent was all along aware of the existence of the impending proceedings, accident and even the claim was lodged to the respondent and respondent to. 7 In support of the appeal Mr. Danied Ngudungi for the appellant, submitted on the 1st and 3rd ground that the evidence in Exhibit P4, that is the respondent's Written Statement of Defense in civil Case No. 137 of 2010 and testimony of DW1 by Daniel Sombua admitting that a notice of accident and intention of bringing court proceedings was sent to the respondent was sufficient to prove the claim. The counsel for the appellant faults the trial court in making a finding that no notice was served to the respondent in compliance with section 10(2) (a) of the Motor Vehicle Insurance Act Cap. 169 R. E. 2019 On the 2nd ground, it was argued that the notice ought to be admitted as evidence, because the appellant filed a notice to produce original document in compliance with Sections 67 and 68 of the Evidence Act Cap 6 R.E of 2002, filed in court on the 4th day of December 2018 and served to the respondent on the 4th December 2018. He argued that the respondent was one of the recipients and had already responded to the demand notice at issue by way of Exhibit P-4. On the fourth ground, relying on exhibit P-3 and P-4 the appellant argued that the appellant, on balance of probability sufficiently discharged her duty in proving her case that is proof of issuance of notice to the respondent he cited the case of Crescent Impex (T) Limited versus 8 Mtibwa Sugar Estates Limited Civil Appeal No. 455 of 2020, to the effect that in civil cases, the standard of proof is on balance of probabilities. On their part Mr Mudhihir Magee for the respondent, submitted on the 1st and 3rd grounds that Exhibit P4 relied by the appellant was a written statement of defence in respect of Civil Case No. 137 of 2010 and not Civil Case No. 53 of 2012. The Civil Case No. 137 of 2010 which was initiated by the demand notice dated 13lh September, 2010 was dismissed by the Court on 25th April, 2012. According to Mr Magee, after the dismissal of Civil Case No. 137 of 2010, the Respondent was not notified by the appellant about the existence of Civil Case No. 53 of 2012. He argued that the plaintiff herself stated she did not join the Defendant/ respondent as a party to Civil Case No. 53 of 2012. This shows that Civil Case No. 137 of 2010 and Civil Case No. 53 of 2012 are two distinct cases. He cited Fabian Munraha v. Rukaya Munraha, 1996 TLR 150 (HC), which held that the appellant route denied the respondent's right to be heard and, accordingly. 9 On the second ground, it was submitted that the notice sought to be tendered was a photocopy, and thus, the trial court rejected it after being convinced that it was a copy and that the original was never served to the respondent. The appellant's counsel admitted this fact. On the fourth ground, Mr Mudhihir submitted that there is no law in our jurisdiction which waives the obligation to prove simply because the case is founded on judgment. The proof of notice was strict since the respondent was not a party to the judgment. The obligation to prove could be waived if the insurer was notified about the case and ignored to pray to the Court under Order I rule 10 (2) of the Civil Procedure Code to be joined. I am aware that this being a first appeal, this court is to reevaluate the evidence of each witness and the exhibits and make a finding on the contested facts in issue. Paulina Samson Ndawanya vs Theresia Thomas Madaha (Civil Appeal No. 45 of 2017) [2018] TZCA 218 (12 October 2018) considered. 10 I prefer to start with the second ground of appeal: the appellant complained about the trial court's decision to refuse to admit the demand notice issued to the respondent. As I address this, it is noted here that the notice was the demand Notice dated 13 September 2010, which initiated Civil Case No. 137 of 2010. In its ruling dated 18.2.2019, the trial court found that the notice sought to be tendered was a photocopy. It was considered that to be admitted as secondary evidence, it should have been certified under section 65 (1) of The Evidence Act [CAP. 6 R.E. 2002]. As such, the trial court considered the appellant’s counsel submissions that there was a notice to rely on secondary evidence but found none on record. It is the correct position of law that documentary evidence may be proved by secondary evidence under section 65; this may be done in the modes explained under section 67 of the Evidence Act; having considered the parties' submission and the trial court ruling, I see no basis to fault the trial court finding. The second ground is unmerited. In passing, as I have intimated above, even if the notice was admitted, I do not consider the same decisive because it was the notice that initiated Civil Case No. 137 of 2010 in which the respondent ultimately appeared as the second defendant. 11 Now, on the first and third grounds, these grounds are centred on the interpretation of sections 10 (1) and (2) of The Motor Vehicle Insurance Act [Cap. 169 RE. 2002]. Under that section, a third party who is a motor vehicle accident victim has a right to enforce a judgment obtained against any person from the insurer of the motor vehicle. However, this right has its condition: to recover such loss, the insurer must be aware of the proceeding, in which, the judgment is sought to be enforced. S. 10 (2) of Act cap 169, whose alleged non-compliance is at issue, provides that no sum shall be payable by an insurer under the foregoing provision of this section. '(a) In respect of any judgement, unless before or within fourteen days after the commencement of the proceedings in which the judgement was given, the insurer had notice of the bringing of the proceedings " (emphasis supplied). I have posed here and reflected on the meaning of the above provision. From what can be gleaned from 10 (2) (a), the appellant, in this case, was required to do the following: one, serve the respondent notice on the existence of Civil Case No. 53 of 2012, and two, serve the said notice 12 within 14 days after the institution of the proceedings in Civil Case No. 53 of 2012. I have scanned the evidence on record, especially Ex P3; this is a ruling in Civil Case No. 137 of 2010, in which the District Court of Kinondoni dismissed the plaint (sic) on 25.4.2012, in want jurisdiction. The respondent was part of a second defendant and thus had notice of the appellant's claims in Civil Case No. 137 of 2010. Since the proceeding was terminated, as indicated above. Its proceedings did not culminate into a judgement sought to be enforced by the appellant, Exhibit P1 (judgement in Civil Case no 53 of 2012). I have given thought on the view taken by Mr Ngudungi for the appellant. His argument would mean that the defendant's undisputed notice in Civil Case No. 137 of 2010 was alive in Civil Case No. 53 of 2012. I do not subscribe to this view because it did not come near to compliance with section 10 (2) of the Act regarding timing and service. A fresh notice ought to be issued and proved concerning the proceeding, culminating in a judgment sought to be enforced under section 10 (1) of the Act. As such the same ought to be done within fourteen days. The issue of notice in the manner provided under section 10 (2) (a) is a unique defence designed for a defendant's benefit but 13 carries along with it the principle that a person should not be condemned unheard. I see no basis to draw an inference of knowledge of notice from Civil Case No. 137 of 2010. This is based on the principle that if the words of a statute are clear and unambiguous, the court need not inquire any further into the meaning of the statute. Ultimately, I see no merit in the appellant's complaints in the 1st and 3rd grounds sufficient to fault the trial court finding. The first and 3rd grounds fail. The fourth ground was on the evaluation of evidence and standard of proof. It is the position of the law that in civil proceedings, the party with the legal burden also bears the evidential burden, and the standard in each case is based on the balance of probabilities. On this principle, in Crescent Impex (T) Limited vs Mtibwa Sugar Estates Limited (Civil Appeal No.455 of 2020) [2023] TZCA 17501 (16 August 2023) the court of appeal had the following to say; It is also elementary that the standard of proof, in civil cases, is on a balance of probabilities which means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. 14 This court, having revisited the evidence, considered whether the appellant had, in the required standard, discharged her duty of proving her claims. As indicated in the issues framed, the determinant issue was proof of notice of the existence of Civil case No. 53/2012 as required under section 10 (2) of the Motor Vehicle Insurance Act Cap 159 R.E 2002. This issue was answered negatively; I have reconciled the same while addressing the 1st and 3rd grounds and found no merit in the complaint. The appellant's case was not proved to meet the required standard. The fourth ground of appeal lacks merit. In conclusion, this appeal is dismissed in its entirety, considering the appellant received legal aid from the Tanganyika Law Society. I shall make no order as to costs. A. J. KIREKIANO JUDGE 12.7.2024. 15 COURT Judgement was delivered in the presence of Miss Bernadeta Fabian, counsel for the appellant, and in the absence of the respondent. A. J. KIREKIANO JUDGE 12.7.2024. 16