MBWAMBO JUDGMNET EDITED FINAL NOW

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO 19046 OF 2024 (Originating from the Judgement and Decree of District Court of Ilala at Kinyerezi, in Civil Case No 55 of 2023 dated 4th July 2024 before Hon. Rehema Lyana -SRM) NOEL ELISAFI MBWAMBO (as administrator of the estate of the late John Mpoka Mbwambo……………..….......…………………………………………APPELLANT VERSUS NDAILAGIJE THADEO…………………………………………1ST RESPONDENT MONICA JULIUS KIBUDEBE……………………………………2ND RESPONDENT JUDGMENT 2nd & 18th December, 2024 MWANGA, J. This appeal originates from Civil Case No 55 of 2023 before Ilala District Court in which the appellant sued the 1 st and the 2nd respondent, claiming Tzs.120,000,000, being specific damages for the death of his brother, John Mpoka Mbwambo, due to a fatal accident caused by the negligent driving of the 1st defendant. Expounding, he prayed for funeral expenses to Tzs.14,625,000, loss of reasonable expectation of pecuniary benefit sustained by the deceased's family to the tune of Tzs. 99,000,000, medical expenses to the tune of Tzs.165,000, general damages to be quantified by the court, Interest at a commercial rate of 25% per month 1 on the principal amount, interest at a court rate of 7%, and the costs of the suit. The brief background of this matter, as can be decerned from the record, is that, on 4/11/2022, at the fire traffic lights area at Ilala District within Dar es Salaam, the first defendant, being authorized by the 2nd defendant, negligently drove the motor vehicle with registration No. T. 572 AYX Toyota Fortuna, the property of the second defendant. As a result, it knocked on John Mpoka Mbwambo, a pedestrian, and caused his death instantly. In Traffic Case No 159 of 2023, the 1st defendant was charged with two counts, that is, Causing death through careless driving, c/s 41, 63 (2) (b) and 27 (1) (a) of the Road Traffic Act Cap 168 R.E 2002, and driving a motor vehicle without certificate of insurance c/s 41 (1) and (2) of the Road Motor Vehicle Insurance Act, while the 2 nd defendant was charged of permitting a person to ride a motorcycle without a certificate of insurance, in which they both admitted their charges, thus paid fine. The appellant was appointed to be administrator of the estate of John Mpoka Mbwambo, the deceased, thus filed Civil Case No 55 of 2022 at Ilala District Court, praying for the prayers stated above. After trial of the case, which was done exparte, the court ruled out that; the appellant proved his case to the standard required in Civil Cases. To his dismay, in 2 the decree, the trial magistrate did not grant the prayers as prayed; instead, she ordered the defendants to pay the plaintiff/ appellant the following: (a) medical expenses to the tune of Tzs.165,000, (b) funeral expenses at the tune of Tzs.14,625,000 (c) general damages to the tune of Tzs. 10,000,000/= (d) interest at a court rate of 6 % for the amount in (a) and (b) from the date of institution of the suit to the date of full payment and the (e) cost of the suit. Displeased, the appellant filed this appeal fronting two grounds of appeal going thus; 1. That the trial magistrate erred in both law and fact for failure to properly analyze and evaluate the evidence on the court record and, as a result, reached a wrong decision. 2. The trial magistrate erred in law and fact by awarding general damages to the appellant that was inordinately low without assigning reasons. On the strength of the said grounds, the appellant requests the court to allow the appeal by partly varying and setting aside the Judgment and decree of the Ilala District Magistrate Court with costs in both the trial and appellate courts. 3 Hearing of the appeal was done orally exparte against the defendants as, despite service, they did not enter appearance. The appellant had a representation of Mr. Boniface Erasto, a learned advocate. Submitting on the 1st ground of appeal, Mr Erasto argued that, as the first appellate court, this court has the power to evaluate the evidence produced in the lower court as provided for in the case of Leonard Mwanashoka Vs. Republic, Criminal Appeal No. 226 of 2014. He contended that it is essential to summarize the evidence and evaluate it objectively. He argued that, on page 1 of the judgment, the trial court said two witnesses were paraded while there was only one witness. Also, the trial court said there were only four tendered exhibits, while on page 3, there were 11. Again, there were no reasons for the judgment or point of determination. He supported his argument by citing the case of Mangeni Ibagi vs. David Sospeter Magambo (administrator of the estate Sospeter Magambo, civil appeal no. 31 of 2021 CAT- Mwanza), where it was held that the judgment must contain a statement of the case, point for determination, and reasons thereof. He maintained that evaluation of the evidence is necessary. On the second ground, he submitted that general damages were inordinately low. He added that general damages are at the court's discretion. However, it has to be exercised within the required principles 4 or relevant factors. To cement his point, he cited the case of Felician Muhandiki Vs. Managing Director of Barclays Bank TLD, Civil Appeal No. 82 of 2016; he contended that if the court applies the wrong principle, this court can interfere. According to him, the trial court awarded a minimal amount, and the court did not give reasons for granting such an amount. He, therefore, implores the court to reevaluate the evidence, partly vary, and set aside the decision of the Ilala District Court. I have keenly examined the appellant’s submission in the light of the grounds of appeal with the weight it deserves. I have also inquisitively perused the lower court records. Firstly, the contention that there were no points for determination is unfounded since the record reveals that there were 4 points for determination the same are, (1). Whether the 1st defendant was reckless and or negligent in discharging his responsibility as a driver, as a result, caused the death of John Mpoka Mbwambo. 2. Whether the motor vehicle with registration No. T 572 AYX - Toyota Fortuner, which was involved in the fatal accident, is the property of the 2nd defendant. 5 3. Whether the motor vehicle with registration No. T 572 AYX - Toyota Fortuner, which was involved in the fatal accident, was insured during the occurrence of the death of the late John Mpoka Mbwambo. 4. To what relief(s) are the parties entitled to The records reveal further that the trial magistrate answered the three issues and concluded that the appellant proved his case to the required standard. Thus, the trial magistrate did not evaluate the evidence regarding the last issue. However, Being the first appellate court, this Court has the power to step into the trial court’s shoes, reconsider the evidence from both sides, and arrive at its findings of fact. There are a lot of decisions from the Court of Appeal consistently emphasizing this point. For instance, in Siza Patrice v Republic, Criminal Appeal No. 19 of 2010 (unreported), the Justices of Appeal stated that: "We understand that it is settled law that a first appeal is in the form of a rehearing, as such, the first appellate court has a duty to re-evaluate the entire evidence objectively and arrive at its finding of fact, if necessary." 6 Based on that stance, I step into the shoes of the trial court and evaluate the evidence. In so doing, I find it appropriate to begin with a Pertinent assertion that he who alleges must prove. It is also a fundamental principle of law that, typically in civil cases, the burden of proof rests on the party making a claim or assertion. This principle forms the basis from the provisions outlined in section 110 of the Evidence Act, Cap 6, R.E 2022, which states as follows: "110 (1) whoever desires any court to give judgment as to any legal right or liability depend on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." Hence, in civil proceedings, a party that asserts a claim also carries the burden of presenting evidence and the standard of proof is based on the balance of probabilities. The burden of proof never shifts to the other party unless the party on whom it lies has discharged its duty to prove the matter. This principle is illustrated in cases such as Paulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2027 CAT, Godfrey Sayi v Anna Siame as Legal Representative of the late Mary Mndolwa, Civil Appeal No. 114 of 2012, and Tabora 7 Municipal Council and others v Kasea Kisanji & 39 Others, Civil Appeal No. 112 of 202, all CAT (unreported). Given the legal principles and precedents cited above, this Court holds that the burden of proof rested on the appellant. Now, the question is whether the appellants proved the claim to the standard required. I have given much attention to the evidence on record. Undisputedly, the appellant proved that on 4/11/2022, the first defendant, being authorized by the 2nd defendant, negligently drove the motor vehicle with registration No. T. 572 AYX Toyota Fortuna, the property of the second defendant, and knocked one John Mpoka Mbwambo, a pedestrian, and caused the instant death of the said John Mpoka Mbwambo. Concerning the reliefs, the appellant prayed specific damages to the tune of Tsh. 120,000,000. In proving the same, the appellant tendered exhibit P10 to prove funeral expenses and exhibit P5 to prove medical expenses. He also clarified that since the deceased was a young person aged 26 and Manson, whose parents depended on him, he was expected to live for more than 33 years, thus generating 99,000,000 as a reasonable expectation of pecuniary benefit sustained by the deceased's family. 8 As the law stands, specific damages must be specifically pleaded and strictly proved. In the case of Masolele General Agencies vs African Inland Church Tanzania [1994] TLR 192 CAT, it was held that; “Once a claim for a specific item is made, that claim must be strictly proved; otherwise, there would be no difference between specific and general claims. The Trial Judge rightly dismissed the claim for loss of profit because it was not proved. See also the cases of Masolele General Agencies Vs. African Inland Church Tanzania (1994) TLR 192 and NBC Holding Corporation Vs. Hamson Mrecha, Civil Appeal No. 35 of 1995 (2002) TLR 71. In NBC Holding Corporation (supra), on page 77, the Court deliberating on proof of special damages had this to say: “We think reasonableness cannot be the basis for awarding what amounted to special damages, but strict proof thereof.” As alluded to above, in proving medical expenses, the appellant tendered exhibit P5, and a glance at the document revealed that the amount used for medical expenses was Tsh. 165,000. I had time to peruse the said exhibit, and it proves that fact. Concerning funeral expenses, the 9 appellant tendered Exhibit P10, in which a glance at the said exhibit reveals that the appellant proved Tsh. 14,460,000 as the funeral expenses Regarding 99,000,000 as a reasonable expectation of pecuniary benefit sustained by the deceased's family, the same was not proved. In his evidence, Pw1 tried to impress upon the trial court that the deceased earned Tshs. 250,000/= monthly, and he was 26 years old and expected to retire in 60 years. Thus, he had 33 years to work, which is equal to Tshs. 99 million for 33 years. In my unflustered view, the same was not proved as there is no material provided to confirm that the deceased was a manson and that he was earning 250,000 per month. Mere mentioning that the deceased was a Manson and that he used to earn 250,000 monthly without proof is not enough. It is worth noting that the standard of proof in civil cases is on the balance of probabilities or a preponderance of probabilities. The Court of Appeal in the case of Berelia Karangirangi (supra) on the principle governing proof of civil case cited with approval the case of In Re B [2008] UKHL 35, where Lord Hoffman stated as thus: ’’If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof 10 fails to discharge it, a value of 0 is returned, and the fact is treated as not having happened.’’ Thus, the prayer was not proved. In my profound view, though the appellant claimed Tsh.120,000,000, he managed to prove Tsh.14,625,000 for medical and funeral expenses. About the second ground of appeal, the contention is that the general damages awarded were low, and the same was awarded without justification. However, this being the first appellate court enjoys the powers of re-evaluating evidence and coming up with its findings, particularly where the lower court has misdirected itself, acted on matters that should not have worked, or has failed to consider matters that should have been considered. Usually, general damage is awarded at the court's discretion. The same is limited to those claims the law presumes as direct, natural, or probable consequences of the act complained of and not otherwise. See the case of African Marble Co. Ltd Vs. Tanzania Saruji Corporation, Civil Appeal No. 38 of 1993 (CAT-unreported). It is also settled law that the trial court must assign reasons justifying the award in awarding it. Further, it is the function of the Court to determine and quantify the general damages to be awarded to the injured party. Still, the claimant must also aver that such damage was suffered during his evidence. In the 11 instant appeal, the appellant was awarded 10,000,000 without justification, and he claims the same to be low. Having revisited the pleading and evidence on record, it is my profound view that, since there are no enough materials placed before the Court’s table for the consideration of such damage, and taking into account the circumstances of this case, the amount awarded will serve the purpose. It should also be noted that no sum of money will fully compensate the injured person for the loss. This principle was illustrated in the case of Sanlam General Insurance Tanzania Ltd (formerly Niko Insurance Tanzania Ltd) vs. Dennis Charles & Another, Civil Appeal No. 51 of 2021. Thus, this ground is dismissed. Before I pen off, I wish to comment on the interest awarded by the trial court, which is interest at a court rate of 6 % for the amount in (a) and (b) from the date of institution of the suit to the date of full payment. Generally, interests that may be adjudged and decreed by courts are of three categories, which can be conveniently described in three phases. The first phase of interest corresponds to the period between when the cause of action arises and the date of filing the suit. The second phase spans between the date of filing the suit and the date of delivery 12 of judgment. Interest in this category is also called interest at commercial rate or bank rate. The third category of interest corresponds to the period between the date of judgment and the date of final settlement of the judgment debt. This is also referred to as interest at the court rate. Thus, no category of interest ranges from the date of filing the suit to the date of full payment as granted by the trial court. See the case of Robert Scheltens Vs. Sudesh Kumari Varma (As an Administratrix of the estate of Baldev Norataram Varma, the deceased and Others Civil Appeal No. 203 of 2019 CAT (Unreported) In the instant appeal, the appellant prayed for two types of interest: interest at the commercial rate of 25 % per month on the principal amount and interest at the court rate of 7%. In my view, under the circumstances of this case, the principal amount prayed cannot attract interest at the commercial rate as it does not arise in a commercial transaction; thus, it was wrong for the appellant to pray for that category of interest. With regard to interests at court rate, the same is statutorily provided and covered under section 29 and Order XX rule 21 of the Civil Procedure Code [Cap 33 R.E. 2019] (the CPC). In the same vein, Order XX rule 21 of the CPC provides that the rate of interest on every judgment debt from the date of delivery of the judgment until satisfaction shall be 13 seven per centum per annum or such other rate, not exceeding twelve percentum per annum as the parties may expressly agree in writing before or after the delivery of the judgment or as may be adjudged by consent. In the instant appeal, the trial magistrate awarded interest at a court rate of 6% from the filing date to the date of full satisfaction. Guided by the authority cited above, there is no category of interest, and the percentage granted is lower than what is provided for by the law. Thus, I replace such interest of 6% with the interest at the court rate of 7% per annum from the date of judgment (of the trial the trial court) to the date of final settlement. Except for the adjustments of interest and reasoning for awarding the general damages, the appeal dismissed. To avoid doubt, the respondent has to pay the Appellant the following; (i) Medical expenses to the tune of Tzs. 165,000 (ii) Funeral expenses to the tune of Tzs. 14,625,000 (iii) General damages to the tune of Tzs. 10,000,000 (iv) Interest at a court rate of 7 % per annum of (i) and (ii) from the date of the trial court judgment (of the trial court) to the date of payment (v) Costs of the suit It is so ordered. 14 MWANGA JUDGE 18/12/2024 COURT: Judgment delivered at Dar es Salaam in chambers this 18th December 2024 in the presence of Mr. Boniface Augustine, Adv for the appellant, and in the absence of both respondents. Right of appeal explained. MWANGA JUDGE 18/12/2024 15