19980828 TZHC Dar es Salaam

. I IN THE HIGH COURT OF TANZANIA AT DAR. ES Sl\.LAi\M CIVIL CASE NO. 217 OF l996 MOST Ti\MB'1E •••••• -., • ., .-. •. •• o • • • • • • • • • ... a • •. PLAINTIFF VEl~SU3 MEHBOUB AMIRAL JALLABHAI •••o ............ ~,,.DEFENDANT · ;DIP._GMENT Ms. Mosi Tambwe was, at the time the events that led to the institution of this case took place, a national Member of Parliamento It was Budget · was · Session, so she· :,:-: here participating in parliamentary proceedings. While . . , so participating she was nominated to be.one of the members of a parliamentary ri.elegation that was to visit Uganda•. In preparation for that journey she '"'."'~ient to Kiriakoo to buy provisions for the joui-ney., ; She went there at between 9.30 and 10.00 a.m to be in time for the departure at 12.00 noon. She was accompanied by her son, Selemani Tambwe (Pt1r.2) o Ms. Mosi Tambwe arrived at Kariakoo safeiy and managed to buy all . . her requirements after which she walked back to 1'iV'ita Street where she · lived. Her return journey was not without incicfont. As she was walking back homa she .heard the loud burster of a firearm: She and her son did not realise the direction from which the gun had been fireda In fact·she tl:ioug-.,ht the sound emanated from fire crackers. She soon realis.ed 9 however,· . . .":t~hatd hiterwas live fi~·e, for she was shot and a bullet lodged in her chest. She ■- 01 :son that she had been hit; she fell down on impact and fell out. · jhe c2.me to when she was already admitted to the Muh;i.mbili Medical Centre h,_-.,,i where she was confined for one and a half weeks. The extent of the injury has been described _by Prof Leonard Lema (PW.2)._ This witness doubles as Professor in surgery and a consultant surgion at the Muhimbili Medical CentreeM.s. Mosi Tambwe's case was referred to him on 30th June, 1995; he saw her on·the following day after receiving a report from other surgions that they had failed to extract a bullet which had lodged in her ches! He examined her and was satisfied that she indeed had a bullet in her bodyo 11 $he· was a very sick pati.ent,' 1 he said 11 He went on to say this:- 2 a •• • The bullet had. penetrated frorn the baCk and it did not go out of the body. She had lost a lot of blo,::,d. She had severe pains. She could. not use her right hond •••::1 It w?cs after consult:=i.tions with other surgc:_;ons the,t Prof Lema ultimc:ttely performed the second operation on the plaintiff on 3rd July, 1995. - He succeeded to extraet the bullet from the plp.intiff 1 s bod.y. After recovery she underwent physiotherapy of her right hand and continued to be :.1is entpatient for one year., In his assessment Prof Lema swore that the plaintiff sustained· 2Cf/4 total incapacity., Th0 plaintiff has told me that a.s a result of that_ injury she no longer ca.t'1 work on her fa.rm out of which she used to earn a living. She says that she canJ1ot work on the farm because the injury has pa:ntially paralysed the upper part of her right hand. She now claims both general and .sp0dal damages as sh.own in her pleadirigs • . The defendant does not deny that he wounded the plai.9-tiff. He only denies that he was negligent when he fired tho buli"et that lodged in the plaintiff's body. For he has sworn -chat at a.bout 9.00 aom an 30th June, 1995, he took a sum of Shso -1,3000 7 000 with which he wanted to buy round bars.His father rang shortly before the defend.ant left for his purchases, aski."lg him to go to the shop that is· mnnaged by his father. On arrival his father told him to attend to custome1S as his fat her was going out. Also in the shop were the.defendant 1 s mother and a shop assistant. The defendAllt testified that his father took a. long time out, so he decided --·to go to a neary restaurant to take teao He loft the money he had with him under a table, he said. On his return he found the shop entrance ble:cked witha matress. At first he thoug...1-it that a customer was examining it. He reliased that thieves had forced their way into the shop when he heard his mother_ SC;reaming for assistance. The situation prompted him to rush to the shop to tackle the thieves., The rn,3.tress was abandoned as he arrived c;_t the scene. Two youths werGfleeing with sofa cushions. He gave chas0 to th::::rn and managed to :recover the c1.1shi0nt3o H.e returned to the shop only to be told that the thieves b.a.d run aw0.y with the bag cont2.ining his money. He imrnedfatcly resumed the c1-l.$e but he got no assistance from by-standers or from anyone. So he pulled his pistol and shot in the air to scare the thieves. They did not stop,. He fired a second time but to no nvail. That is when he aimed at the thief who WaB running away with his bag of nnney. · 3 · He aimed at his arm, but missed it. 'I'he defendant admits that it is this latter bullet that hit the pla.intiffo He abr:.t..11.doned the chase for the thieves in order to attend to the pl2~intiff. He is the one v-1ho took her to the Muhimbili Medice,l Cei.1tre. Mr. El-Maamry. and Mr. Kifunda, learned coun13el .for the. plaintiff and fo:r the defendant, respectively, have presented one cruci.al issue, and this is whether in wounding the plaintiff the dcfen-:l.ant was guilty of negligenceo This being the position the defend;mt will 1::;c ~j.:,.ble if in the circumstances .rf !::fff of care to the plaintiff. And as is th0 practice .in civil litigatfon . the plaintiff h,:s the unenviable task of r,rovi.;ig: tl1e alleged negligence. I callt~d upon learned counsel to present w:c-it-con arguments on this issue., Mro EJ,.-Maamry has argued that it W'-',S dus · to the defendant 1.s wanton negligence that the plaintiff sustained inj,~ry ,,hich h::.s damaged her physically end financially 1 thereby subjecting her to permanent irnpairement and lo~_. ~~:untold proportion. Mr. El-Mn.amry hs.s allude•'J. to the definition of neglibc:hce as setforth by /ilderson, D.. 1 in Bluty ;~~«,__?_,irmingham Water }!~.~. JI9..t (1956) 11 Exho 781. I will come to this· matter later., suffice it to say tfiat it clearly identifies the ingred:.c:nts that constitute the tort known as negligence, namely, that the p:a.intiff must establish:- to1~ards (a) that the def,:mdant had a duty of care ··,· him; (b) that such duty has been breached; and (c) that as a result of .such duty the plaintiff has sufferred any damage,. It is Mr-El- Maamry's contentfon thet the plabtiff has adduced evidence thnt shows tha.t the defendant 01ved her a. duty to take necessary steps 2.nd to foresee• the likeli.hood of his c,ct injuring the plaintiff.. rt contended that he ought have thou·ght whether a prudent and reasonable man · erdinaril7 guided upon consideration which .: :... · regulate tht- conduct of human affairs would do 1...rhat he had don,:c~ · :!:n p,3.r.ticulo:r, the defendant is alleged to have been under a duty to anticipate reasc,nable and probable results of his act of shooting at suspects in i:, busy street while knowing that there were other passers-by who nicht well get mixed up with the alleged suspects .. 'Hro El-Haarnry relies on Lord t. tkin's .and lord Macmillan's dicta in H'Al,f~~r:_ (or Donogliue) V Stephenson (1932) ,\oCo 5621 It is thus M~'o El-Haamry 1 s contention thc:tt th2Jr0 existed sufficient legal neighbourbood ~~~ . . /the l.1tigants becc,u,se the plaintiff was directly affected by the defendant I s actions such that the latter ought reasonably fo )1ave people like the former in his contentemplation when he discharged his forearm. 4 : .·,.,-I', Hr. Bajana denies that t]k defendant :1cted neglige;;_tiy. He has made very briof submissions in furtherance of his arguin01i.t in ths.t beh:~lf. He contends that the defendant was not negligent because he fired twice . ·. ,, in the air before 1,J"" discharged the bullet thnt. wGtE:d.ecl the plaintiff • .So the warning shots arnounted to an overt act of reason:;i.ble care to avoid random shooting. In addition, he contends that the .street was not crowded as claimed by the plaintiffo Nr •. Bajan~ 'wirids up this rn1:1.tter by invl::ting mec' to hold th.J.t no ingredient of n&gligence has: been esto.blished. .(1.11 that hefell the plA.int iff iilas an accident pr,et~\.iU,ably over which the aJfenda.nt· I-i~d no control. Now· the l~i./2\ne~{i~~hC{f; is fairly settled., The law be~bm,;; more :,be:r;tain from-Doiionghqe's . _.,_,_ ... case .. · In that case Lord 1'..tkin held that a person .mupt take reasonable care to avoid acts or omis1:;ions which he ca..-i. reasonably foresee would be lik2ly to njure their ne:. 6htt ·•,r.s.. The question was put re~arding who is one's neighbour in law. Lord Atkin provided the answer:- 11 . , . . The answer seems -:o be persons who are·clcsely and directly effected by my act that ,I ought reo.sonably. to h2.ve them 1n · conteoplntion as bE:<ing so. effected ,,:~2n I c,i:1 directing my cind t0 the act.s or which :,re called in qucsti'.:,n• • / 1 /Jo that the law concerns itself ,-dth corelessnes:a. only where there is a duty of care and where failure in the.t duty has caused damage. Hence the cardinal principle of liability is tho.t the party complained agaiI1$t 11111111111111 should owe the pciTty complaining a duty to bke care. ';rhe question which ..-- now cries for ?11 answer is whether indeed the plaintiff Wi:lS,. in law, the defendant's neighbour. Evidcmce on record shows that the pla.intiff was lawfully about her business when she was shot by the defendm1te .She swore that the street was then crowded 7 an ass~rtion the defendant denieso If 1 as the. defendant swore, the street was clear, it behoves me to be persuaded that he could have fa.iled. to takE: an accurate aim to the object of his shots. In my assessment of the evidence, esp;2cially stD.tec:ients made by the defendant in cross-examin2..tion; the position that had presented itself to the tl.ef~roit was such tho.t it was not safe for hi>r, to shoot<> It was so. because he shot at the alleged t~1ief when he made: a sudden turn into a corner. The ~efenda:nt must surely have seen the possibility of the hfa suspoct.s mc:J:ihg a sudden turn to avoid arrest. 5 ' . So when he shot ,,.,t a. person who was going ou t•f •. · ·]..,. . .cc.is view 'ne G.lu 1 ·,1 so a t his own peril.. This is clear evidence thc,.t the defomlt:mt did not take into consideration the fact th:c:t there WGre other people within tha.t area. not Hro Kifund2. would wish to persu2..de n18 tl1at there were .,.::·;-.many· people at the scene :J.nd that th,:; plaintiff Md her :3on are 2,ctuated by p·2rsomtl rnany . . . interest to claim t.h2..t · people werG nnllrn.r; .qround th•2 nrea. Hay be he is right; but won't the sarns apply to the def0ncl':..nt to deny the presence . of people to ward off being fcund liabl,:; in negligence? In my view t)1er·e . . preponderant were is sufficient evidenc•2! to establish that there/many people in the area. So shooting in the circum.stan9c:G 6: this casi, is only evidence of disregard to the sa.fety of others in or·:ler/!gve a. srn2.ll sum of Shs. 1 7 300,000/=• I hold therc:fore th,:1.t the defendant had a duty of care ';o th<>- plaintiff who was lawft.llly about her business. In tho..t circumstance I determine; the first issue in the ,3ffirm2,tiw,., To what relief, then, is the plaintiff entitled.? Her claim, according to the pb.int, is for damages 3.mounting to Shs. 124,856 1 000. The damages include special dam;;;.ges as well as general damages. As .to ·special dam.:,ges there is evidence th2~t as a result of the injury she 110 longer can attend to her farming .. She claims th:i.t this has caused her lose some Shso 10,000 7 000 per arL.'tlum., There is fu:cth,:r evidence that at the tim,:) she was wounded she was earning Shso 77,640 per month by wo.y of wages tho..t were payable tc her as a Member of Parliament,. Hrc El~Maamr;y argues·that but for the infirmity that was co.used by the injuries~ his client was aspiring for another parliamGntary term spanning fro::, the Jf:,o.r 1995 to 2000. He r-thinlm th2,t it. is obvious that sh2 wculd ;1ave beeh re-elected., ;3o 1 because as a 1'1cmb~r of Parlia,;ne11t she ,.~1ould 13arn .0hs. 77, 6~-0 · per n1onth a11d a da_ily allowe.nce of Shs. 20 7 800 she has thereby ~0st 1L1-,856,000. Well, special damages require pr,~0 f In this ce..Be. the only evidence rel.-;;;.tes to farming.. But the plaintiff w::...,_s r,:,qu.irGd to produce concrete evidence, :relnting to. s,;_les of a.gricultural p:roduco in previous y•2ars to compare with her future e2.rmings. This she did not do. i.\s to parliarnentariJ salaries it is wholly puresurrrptive to argue that it i,s obvious that she would havG been returned to 1x:.rliament. J;.n argument of that nature belittles the 2,h:Uity of the e~:::ctorab to elect a condid.,,:te they c0rn3ider more fit than oth,3r conte,stants~ The choice of a fit condidc-,te cannot be simplified in the manner Mr. El-Ms.amry an'.:l. the plaintiff would have rnc believe 41 I 6 In a...n. election. no one knows the result until the returning officer has announced the official results.. And tl.S to no.tional Members of Parliament as the plaintiff was, the choice was ths.t of the President., There is no suggestion the.t the plaintiff could have been a Member of Par],iament on that account oacause the P.resident no l'.:mger has &uthority to do so. · '17his part of the clEdm would, therefore, failo .Another head of special damages relates to injury and pain. Here there is over:uhealming evid,~nce that indeed the :).1.aintiff's life·was put in peril by the defenda:'lt' s negliQ:enceo She c.laims Shso 100 1 O()f), 000., In my assessment a .sum of -Shs. 10,000,000 would. r:1 ee-;; the ,justice of this case., I _have reached this figure after con.sidering tlnt the defend.ant has 8 shown contriticin and remorse; having visited the }?l:=tintiff when:.f~ was fightinr ~or her life a-rid h2.vin5 -paid · her a cc,nsolatio:n sum of Sh.so 500,000 .. Upon the foregoing reasons and observations I find the defendant the liable in n,::!gligenceo As a result I enter judgment foi·/ plaintiff. I award her a sum of Shs. 10 1 000,000 as special damag,::;s, costs of the suit and simple interest an the decretal sum at· the rate of· 30'/, per annum from the date of the suit to the date of _jud.grner,t 1 therei::li'ter interest will be 7Cf/i per. cent per a.rm.um until the decree is fully satisfiede Deliveredo l1r,. El-Maamry, Adv: For Pl2-intiff Mr. Kif;md, Adv: For DefenJant