20150624 TZHC Dar es Salaam 1

l ! ·.1, 5i/ ?' :. ~i~ ' ~·--~:;, .. .,_ [,.,· . . I. IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 98 OF 2013 Original Civil Case NO. 251 of .2008 in the Court , of the_ ~esident Magistrate at Kisutu. NIKO INSURANCE (T) LTD .............. APPELANT V '. 1 MRS. MECKTILDA VENANT MUGEMUZI ............................... RES PO ND ENT JUDGMENT Date of last Order 23/4/2015 Date of Judgment 24/6/2015 A.Shangwa. J 1 I This is an appeal against the judgment and decree of the Court of the Resident Magistrate at Kisutu delivered on 7 th February, 2013 by Lema, PRM. In its Memorandum of Appeal, Appellant did not number its grounds of appeal. ., 2 - -As a whole, -there -are three- rhajo:f gro-urids of appeal for determination by this Court. These grounds are as follows:- 1. That the trial Courl erred in fact and in law in proceeding with the case despite the expiry of the scheduling order. 2. That the trial Courl erred in fact and in law in holding that the Respondent is entitled to a new vehicle Toyota Land cruiser, a relief which was not pleaded and prayed in the plaint and 3- the trial. 3. That the trial Courl erred in fact and in law in holding that the . Respondent lS entitled to general damages to the tune of Tshs 30,000,000/= (Thirly million). The facts of the case between the parties as established by the trial Court are as follows:- On 7th December, 2006, the Respondent Mrs. Mecktilda Venant Mugemuzi and her husband called Venant Balwee Igirira Mugemuzi . .' ' \ '., 4 - ·got-involved -in a tnotof vehicle- accident. By then, they· were moving together in their motor vehicle with Reg. No T. 583 AMJ Toyota Land Cruiser which was badly damaged. Her husband died in the accident. Sometimes later she was appointed as administratrix of her late husband's estate. At the time of the accident, the said motor vehicle was insured with the Appellant NIKO INSURANCE (T) LTD. After the accident, the Appellant undertook to repair it. So, they pulled it from the Ministry of Lands Dar es Salaam from where it was placed after the accident and took it to Maximum Auto Garage Ltd for repair. NIKO INSURANCE (TZ) Ltd (Appellant) offered payment of Tshs 10,022, 5 - 262.50 but Maximum Auto garage- Ltd- issued an invoice of Tshs 18,551,652/=.NIKO INSURANCE (TZ) Ltd failed to pay the same. Up to now, the Respondent's Land cruiser is grounded at Maximum Auto garage unattended. The original smoothness of its body is deteriorating because of rust and its windows have been removed. At the time of the accident, the Respondent's Land cruiser had a comprehensive insurance cover of Tshs 20,000,000/= covering the period between 14th March, 2006 up to 13 th March, 2007. On the fist major ground of appeal, the Court is called upon to determine as to whether or not the trial Court erred in fact and in law in I • 6 proceeding with the case despite the expiry of the Scheduling Order. This ground of appeal is very sensitive. Courts in this country have more than often been confronted with the question as to what is the effect of proceeding with a case where its speed track has expired. What I know is that .speed tracks of cases are determined in accordance with 0. VIIIA of the Civil Procedure Code Cap 33 R.E 2002. The spirit behind 0. VIIIA of the Civil Procedure Cade is nothing other than a social and legal demand to expedite hearing of civil matters by courts of law. In cases where the speed track has expired without the case being finalized, such speed track can be 7 renewed by fixing a fresh one. Doing so cannot lead to a miscarriage of justice. In fact, I find nothing wrong in proceeding with the case where the scheduling order has expired such as the trial Magistrate did. This is because proceeding with the case beyond its speed track does not render the proceedings a nullity. Therefore, the trial magistrate did not err in law or in fact in proceeding with the hearing of the suit despite the expiry of the scheduling order. This disposes of the first major ground of appeal. On the second major ground of appeal, the Court is called upon to determine as to whether .... • 8 or not the t.rial Court erred in law and in fact by holding that the Respondent is entitled to a new motor vehicle Toyota Land cruiser, a relief which was not pleaded in the plaint or prayed for. In resolving this ground of appeal, I decided to examine the plaint. Upon its examination, I agree with counsel for the Appellant that the Respondent did not plead or pray for a new Toyota Land Cruiser. Her claims and prayers are shown in paragraphs 3 and 10 of the plaint At paragraph 3 of the plaint, the plaintiff (Respondent) claimed for payment of Tshs 18,551, 652/= being repair charges, payment of general damages and payment of Tshs 50,000 / = per day from 7 th December, 2006 when the • 9 accident occurred until full payment as costs for hire of alternative transport. At paragraph 10 (a) to (g), she prayed for payment of a total sum of Tshs 20,406,817 ,20 as -repair costs plus labour charges, payment of storage charges of Tshs 100,000/= per month from 7 th December, 2006 when the accident occurred to the date of being fully indemnified, payment of Tshs 50, 000/= per day as costs of hiring alternative transport from 7 th December, 2006 when the accident occurred to the date of being paid Tshs 20,406, 817. 20, payment of general damages to be assessed by the Court, payment of interest on the decretal sum at 31 % per annum from 7 th 10 December, 2006 till full satisfaction, costs of the suit and any other relief that the court deems fit. Now, as the Respondent did not plead or pray for a new Toyota Land Cruiser, was the trial Magistrate right in ordering in her judgment that the Appellant should give the Respondent a new motor vehicle make Land Cruiser hard top as other relief. Mr. Msechu for the Appellant argued that it was wrong for the trial Magistrate to order the Appellant to give the Respondent a new motor Vehicle ·Toyota Land Cruiser hard top, a relief which had not been pleaded or prayed for in her 11 - -plaint. - He- said fhaf he- does not deny that the Court can grant the relief as the trial Court did under the prayer of any other relief (s) as the Court may deem fit but that the relief should not be of an entirely different description from the main relief. He contended that since the Respondent in the plaint pleaded and prayed for repair costs plus labour charges, there were no reasons for awarding a new Toyota Land Cruiser under the prayer of any other relief. In support of his contention, he cited the case of Mufindi Paper Mills Ltd V. Tanzania Electric supply Company Ltd Commercial Case NO 104 of 2005 High Court of Tanzania (Commercial Division) at Dar es Salaam in which Massati, J ' . 12 as he then was held inter-alia that the Court has inherent power to grant such relief as it may deem fit in ·the circumstances under the prayer "any other relief' provided that such relief is founded on the allegations in the plaint and evidence on record and cautioned that the Court has to exercise this power with great caution and circumspection. As it can be seen from the above cited authority, the court has the power to grant such relief as it may deem fit under the prayer of "any other relief' so long as the relief is based on the allegations in the plaint and record on evidence. In fact, I agree with Mr. Msechu for the ), • 13 Appellant that the relief should not be of an entirely different description from the main relief prayed for in the pleadings. As it was held by the Court in India in the case of SANAT V. HEM, A 1961 C 411, other relief to be granted must not be inconsistent with the plaintiff's claim. In this case as it was correctly argued by Mr. Msechu, awarding a new Toyota Land Cruiser under the prayer of any other relief was inconsistent with what was pleaded and prayed for by the plaintiff (Respondent) namely repair costs plus labour charge of Tshs 20, 406, 817. 20, storage charges and if I may add general damages, interest and costs of the suit. ' . 14 I hold therefore that the trial Magistrate was wrong in ordering that the Appellant should give the Respondent a new motor vehicle Land Cruiser hard top as other relief. Moreover, there was no evidence to show that at the time of the accident, the Land Cruiser in issue was brand new or old. The available evidence was as to how . much it was insured. That lS at Tshs 20,000,000/= This disposes of the second major ground of appeal. On the third major ground of appeal, the Court is called upon to determine as to whether or not the Respondent is entitled to general t 15 damages to the tune of Tshs 30,000,000/= (Thirty Million). It is common knowledge that general damages are awarded in the discretion of the Court. In awarding general damages of Tshs 30,000,000/=, the trial Magistrate stated in her judgment that the nature and circumstances of this case in which the plaintiff (Respondent) lost her husband who died in the motor accident justifies an award of the said amount of damages. She correctly pointed out that the aim of general damages is to place the plaintiff in the same position as money can do it before the accident or before the injuries "restitution in integrum". 16 In my op1n1on, this was not a fit case to grant general damages. This is because what the plaintiff lost was her husband who died in the accident. So, there was no need for the trial Court to grant general damages of Tshs 30,000,000 to her. Loss of one's husband in a motor vehicle accident does not amount to monetary loss. No money of whatever kind can make good for a person who has died. A pertinent question here is: What monetary loss did the Respondent suffer after the accident in which her husband died that general damages would put her in the same position as money can do it before the accident. The answer is no. I .,. t't~ \·'·I a.. .t ' . 17 hold therefore that the Respondent was not entitled to any general damages. This disposes of the third major ground of appeal. In my considered opinion, the Appellant should pay the Respondent Tshs 20, 406, 817. 20 as repair costs of the motor vehicle in issue or indemnity including labour charges and interest at 12% per annum from the date of filing the suit i.e 19 th September, 2008 to the date of full payment. Thus, I allow the appeal to the extent mentioned herein. Each party to bear ·--- --~----· -- - - - - - - . - - - - - - · - --------- "\''') t· .. .... 4, ._ , 18 Delivered in open Court this 24 th day of June, 2015 in the presence of Mr. Eustace for ~.~· V :;)-,,}.j • . . ·i!- .-~• :~~i> . ·'j