20150930 TZHC Dar es Salaam1

~-, ,; . ....- _ \ IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM (APPELLATE JURISDICTION) CIVIL APPEAL NO. 31 OF 2015 (C/F the Resident Magistrates' Court of Dar es Salaam at Kisutu in Civil Case No. 16 of 2011) NATIONAL MICROFINANCE BANK PUBLIC LIMITED COMPANY ....................................... APPELLANT VERSUS EDOS MASSAWE t/a BINECA INVESTMENT ............. RESPONDENT (From the Resident Magistrates' Court of Dar es Salaam at Kisutu) (D. Kisoka, RM) Date of Last Order: 14th August, 2015 Date of Judgment: 30th September, 2015 JUDGMENT FELESHI, J.: In the Resident Magistrates Court of Dar es Salaam at Kisutu, the respondent sued the appellant for, refund of overdrawn Tshs. 3,000,000/= . from the respondent's account, interest at 30% per annum from the date when the cause of action arose until full payment, general damages at Tshs. 100,000,000/= for gross professional misconduct and negligence that tarnished the respondent's reputation and costs of the suit. The trial Court awarded payment of overdrawn Tshs. 3,000,000/=, general damages at Tshs. 20,000,000/= with no order as to costs. Page 1 of 6 Aggrieved, the appellant has appealed on three (3) grounds namely:- 1. That, the trial Court erred both in law and in fact in holding the appellant to compensate the respondent Tshs. 3,000,000/=. 2. That, the trial Court erred in law and in fact in holding the appellant to pay the respondent Tshs. 20,000,000/= as general damages. 3. That, the trial Court erred both in law and in fact in applying a wrong principle in its approach to evaluate evidence. The appeal was heard by way of written submissions whereas the appellant engaged the services of Maleta & Ndumbaro Advocates while the respondent was represented by N.G. Galikano, advocate. Parties complied with the Court schedule hence this Judgment. Addressing the 1st ground of appeal, the appellant's counsel submitted that, the amount appearing on Cheque No. 4279 drawn by the respondent in favour of BARNABAS MMASI (PW2) was not clear thus necessitating the appellant to debit Tshs. 3,000,000/= from the respondent's account in favour of PW2 (holder of the Cheque). The appellant insisted that, PW2 was paid the said amount though PW2 refuted. The appellant's counsel added that, since PW2 did not dispute payment of Tshs. 300,000/=, then, the respondent ought to have been refunded Tshs. 2,700,000/=. Regarding the 2nd and 3rd grounds of appeal, the appellant's counsel submitted that, award of Tshs. 20,000,000/= was not justifiable for no evidence and or reasons were assigned to substantiate such award as general damages. He cited the case of ANTHONY NGOO & DAVIS ANTHONY NGOO vs. KITINDA KIMARO, Civil Appeal No. 25 of 2014 (Unreported), (Arusha Registry) where the Court of Appeal of Tanzania observed that:- Page 2 of 6 " ... ... ... The law is settled that general damages are awarded by the trial judge after consideration and deliberation on the evidence on record able to justify the award. The judge has discretion in the award of general damages. However the judge must assign a reason, which was not done in this case. Nevertheless, the trial judge awarded the plaintiff /respondent general damages of Tshs One Hundred Million {100,000,0000) without assigning any reason for the same'~ In reply, the respondent's counsel argued, the trial Court was justified to order refund of Tshs. 3,000,000/= for the said amount was withdrawn from the respondent's bank account and payment of Tshs. 20,000,000/= as general damages for the disturbances on the part of the respondent in pursuing the matter in Court to have his money refunded. He urged this Court to be guided by the decision of the Court of Appeal of Tanzania in awarding general damages as held in the case of SILAS SIMBA vs. EDITOR MFANYAKAZI NEWS PAPER & MAHAMUDI MWINYI, Civil Appeal No. 7 of 1997 (Unreported) (Dar es Salaam Registry). The grounds of appeal can be reduced to two questions, one, what amount was withdrawn from the respondent's account and received by BARNABAS MMASI, two, if grant of Tshs. 20,000,000/= is justifiable. Regarding the 1st question, it is on record that, as such, on 15/01/2010, the respondent drew cheque number 4279 in favour of (BARNABAS MMASI) to the appellant (NMB) for Tshs. 300,000/=. It is also on record that, the said BARNABAS MMASI received Tshs. 300,000/= from NMB (the appellant). Page 3 of 6 Besides, the testimony of DWl JOHN PAUL KINIMO is that, the respondent's account was debited Tshs. 3,000,000/= by the appellant. ow1 added that, the cheque drawn by the respondent was ambiguous which misled the teller in debiting the said Tshs. 3,000,000/= from the respondent's bank account. Notably, the appellant (NMB) who is now holder of the cheque alleged to have misled payment did not tender the same in evidence to substantiate the allegations of ambiguity as raised by ow1. Now, from the above pieces of evidence, since the appellant admits to have debited Tshs. 3,000,000/= from the respondent's bank account and since the appellant also admits to have paid Tshs. 300,000/= to PW2 BARNABAS MMASI and since the appellant has failed to substantiate the ambiguity in cheque number 4279 bearing ambiguities leading into failure to adhere to withdrawal instructions from an account holder for he failed to tender the said misleading cheque drawn by the respondent, then, it has been to the satisfaction of the Court that, the appellant was not justifiable to debit Tshs. 3,000,000/= from the respondent's bank account. It follows that, since PW2 BARNABAS MMASI admitted to have received Tshs. 300,000/= from the appellant (NMB), then, the respondent is entitled for refund of Tshs. 2,700,000/= which was debited from his bank account without his dully instructions to the bank. In a nutshell, the respondent should be refunded Tshs. 2,700,000/= which was wrongly debited from his bank account. Remarkably, upon discovery of any ambiguities in the drawn Cheque, a wise Banker ought to have returned/rejected the Cheque for the purposes of securing a clear instructed cheque in due course. Page 4of 6 Regarding the 2nd question as to justification in awarding general damages to the tune of Tshs. 20,000,000/=, as correctly submitted by the appellant's counsel, no reasons were assigned as to the award. Besides, no evidence was adduced in Court warranting award of such amount as general damages. Mere assertions that the respondent was disturbed in instituting the case are unworthy for the award of the amount of money. I full subscribe to the cited decision of the Court of Appeal of Tanzania in the case of ANTHONY NGOO & DAVIS ANTHONY NGOO vs. KITINDA KIMARO (supra) that, prayer for general damages must be substantiated prior to its award. This is a fit case to interfere with the award by the trial Court. In the case of DAVIES vs. POWELL DUFFRYN ASSOCIATED COLLIERIES LTD (1942) A.C 601 Lord Wright had this to say at page 616 - 617:- " ...... Where the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate Court is particularly slow to reserve the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer L.J. in Flint v Lovell. In effect the Court, before it interferes with an award of damages should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate Court is to interfere, whether on the ground of excess or insufficiency. ......... ". From the above cited case, this Court allows the 2nd ground of appeal to the effect that, the trial Court had no justification to grant Page 5 of 6 - ·- . Tshs. 20,000,000/= without prior·- proof of such -gen-eral -damages:· In a nutshell, the respondent is only entitled to be refunded the withdrawn Tshs. 2,700,000/= and interest at bank rate from the date of withdrawal to the date of filing of the case in the trial Court and interest at Court rate from the date of Judgment of the trial Court until payment in full. Considering the circumstances of the matter, I make no order as to costs. '- It is so ordered. Judgment delivered in chambers this 30th day of September, 2015 in presence of Edward Magayane, Advocate for the Appellant and Mr.N.G.Galikano, Advocate, for the Res ondent. Right of Appeal' ex lained . . M. FELESHI JUDGE 30/09/2015 Page 6 of 6