MISCELLANEOUS CIVIL APPLICATION NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 266 OF 2022 (Originating from the High Court o f Tanzania, Dares Salaam District Registry in Civil Appeal No. 266 o f 2017) MICA TANZANIA LTD.................................................................. APPLICANT VERSUS NURDIN IB R A H IM ................................................................. jst RESPONDENT JULIANA FEDRICK K IV U G O ...................................................2nd RESPONDENT HERITAGE INSURANCE CO. L T D ........................................... 3 rd RESPONDENT RULING 23d& 31st March, 2023 BWEGOGE, J. The above named applicant filed an application praying for leave to appeal to the Court of Appeal against the decision of this court in Civil Appeal No. 266 of 2017 dated 22nd November, 2022. This application is brought under i section 5(l)(c) of the Appellate Jurisdiction Act [Cap. 141 R; E 2002] and supported by an affidavit of the counsel for the applicant. The background of this matter, albeit brief, is as thus: The 1st respondent instituted civil proceedings (Civil Case No. 53 Of 2016) at Temeke District Court against the applicant and 2nd respondent herein for compensation for bodily injuries occasioned by the road accident caused by the 2nd respondent who was an employee of the applicant. The 1st respondent claimed for payment of a sum of TZS 14,000,000/= as specific damages and TZS 539,250,000/= as general damages, among others. During the pendency of the trial, the 3rd respondent was joined to the suit through a third-party procedure commenced by the applicant. Having heard both parties to the suit and considered the evidence tabled before it, the trial court decided that, the 1st respondent failed to prove the amount he claimed as specific damages but awarded the same general damages at the tune of TZS 12,000,000/=, among others. The 1st respondent, being aggrieved by the decision of the trial court appealed to this court in Civil Appeal No. 266 of 2017. This court allowed the appeal and varied the decision of the trial court by awarding the 1st 2 respondent TZS 712,800/= as specific damages, and TZS 150,000,000/= as general damages. The applicant was not amused with the decision of this court. Hence, this application. The applicant was represented by Mr. Victor Kikwasi, learned advocate whereas the 1st and 3rd respondents were represented by Mr. Levis Lyimo and Ms. Happiness Karoli, learned advocates. The 2nd respondent was absconded to appear in court. The counsel for the 1st and 3rd respondents refrained to file counter affidavits. Before this matter was scheduled for hearing, Ms Karoli specifically enlightened this court that she didn't intend to contest the application herein. And, on the date scheduled for hearing, the counsel for the 1st respondent submitted that he had no intention to contest the application herein and prayed this court to grant the leave prayed for without an order for costs. Following the concessions made by the counsel for the 1st and 3rd respondents, the applicant's counsel prayed this court to grant the application herein. The issue for determination is whether the applicant herein has substance. 3 It is a law that leave to appeal may only be granted upon the applicant establishing contentious issues of law for attention by the superior court [Said Ramadhani Mnyanga vs Abdallah Salehe [1996] TLR 74]. In the same vein, leave to appeal may be granted where the grounds of appeal raise issues of general importance and, or where the grounds show arguable appeal [British Broadcasting Cooperation vs Eric Sikujua Ng'maryo (Misc. Civil Application No. 138 of 2004) [2005] TZCA 93]. The counsel for the applicant deposed in the affidavit supporting this application that the impugned judgment of this court varied the decision entered by the trial court by awarding the special damages of TZS 752,000/= and enhanced the general damages from the amount of TZS 12,000,000/= awarded by the trial court to TZS 150,000,000/. That this court improperly re-evaluated evidence on record and erred in law in interfering with the trial court award of general damages without taking into consideration of the guiding principles of the law. Further, it is alleged that the 1st respondent was awarded special damages without evidence supporting the same. Therefore, the applicant prays to be granted a leave to appeal to the Court of Appeal on the ground that, the impugned judgment and decree raise points of law and facts which call for the attention of the Court of Appeal. It is argued that this court improperly re-evaluated evidence recorded and erred in law by interfering with the trial court award on general damages without taking into consideration of the guiding principles of law and by awarding specific damages without evidence supporting the same. That the damages granted by this court are on the higher side and unjustified in the circumstances of this case. Having scrutinized the depositions made by the counsel for the applicant and gone through the decision of this court, I am satisfied that the applicant has demonstrated an issue of general importance and, or arguable appeal worth consideration by the apex Court. The certified issue for consideration by the superior Court is thus: Whether the trial judge interfered with the trial court award o f damages without taking into consideration the guiding principles o f law. In fine, I find the application herein with substance. The application is hereby allowed. The leave to appeal to the Court of Appeal against the 5 decision of this court is hereby granted. Order accordingly. d a te d at d a r es s a la a m this 31st day of March, 2023. /■ '-1 'V O. F. BWEGOGE i '»j * ■\'r/j ,.f JUDGE 6