Ogape Wilfred Kileo as administrator of the estate of the late Emmanuel Wilfred Kileo vs Msengi Fredrick Hamis and Others Civil Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 76 OF 2022 BETWEEN OGAPE WILFRED KILEO (As administrator of the late EMMANUEL WILFRED KILEO)…………………………………….PLAINTIFF VERSUS MSENGI S/O FREDRICK HAMIS……………………..…………….1ST DEFENDANT FREDY RICHARD MAGABE……………………………..……………2ND DEFENDANT ALLIANCE INSURANCE CORPORATION LIMITED…………………..3RD PARTY JUDGMENT Date of last order: 02/12/2024 Date of judgment: 18/12/2024 A.A. MBAGWA, J. The claim in this suit arises from a fatal accident that allegedly claimed the life of the late Emmanuel Wilfred Ogape. The plaintiff is therefore the administrator of the estate of the late Emmanuel Wilfred Kileo. 1 The plaintiff instituted the present suit praying the Court to order the 1st and 2nd defendants or the 3rd party to pay the plaintiff as follows: (a) Specific damages to the tune of Tanzania shillings seven hundred fifty-one million three hundred fifty-six thousand one hundred forty- seven (TZS 751,356,147/=) only. (b) General damages as may be quantified by the Court. (c) Funeral expense to the tune of TZS 16, 035,000/=. (d) Loss of reasonable expectation of pecuniary benefit sustained by the family of the deceased to the tune of TZS 388,800,000/=. (e) Court interest on the claimed amount under (a) and (b) above at the rate of 7% per month from the date of institution of this suit to the date of payment in full. (f) Interest of commercial rate of 25% per month on the principal amount in (a) and (b) above from the date when the cause of action arose to the date of final payment. (g) Costs for the suit. (h) Any other relief (s) that this Hon. Court may deem fit to grant. 2 To prove the claims, the plaintiff called four witnesses namely, Bernard E. Masimba (PW1), Leonard Wilfred Mushi (PW2), Ogape Wilfred Kileo (PW3), and Joseph Kamil Mashue (PW4). He also tendered a number of documents that were admitted in 29 sets. The relevant details of the documents will be discussed in the course of determining the core issues of the matter. In a nutshell, the plaintiff’s account as gleaned from the pleadings and the evidence was to the following effect. The 1st defendant, Mr. Msengi Fredrick Hamis, was an employee of the 2nd defendant, Fred Richard Magabe. Mr. Msengi Fredrick Hamis was employed as a driver of the 2nd defendant’s motor vehicle. He was driving a commuter bus Toyota Coaster with registration No. T 323 DMK from Msata to Tegeta Nyuki. The said motor vehicle was insured by the 3rd party, Alliance Insurance Corporation. It was the plaintiff’s evidence that the 2nd defendant insured the motor vehicle through an intermediary (broker) named Sharp Finance Services Ltd. On a fateful day, that is, on the 31st day of August 2021 at Mapinga area along Dar es Salaam-Bagamoyo Road in Coast Region at around 21:00hrs, the 1st defendant, while driving the motor vehicle No. T323 DMK Toyota 3 Coaster (the motor vehicle) accidentally knocked the deceased Emmanuel Wilfred Kileo thereby resulting in his death. According to the plaintiff’s evidence specifically, the particulars of a road accident (police form No. 90 and part of exhibit P29), the deceased Emmanuel Wilfred Kileo was riding a motorcycle with Registration No. MC 155 CMH HONLG. No sooner had the accident occurred than Mr. Bernard E. Mashimba (PW1) and Joseph Kamil Mashule (PW4) arrived at the scene of a crime. PW4 along with other police officers inspected the crime scene and thereafter allowed the deceased body to be taken to the hospital. The deceased body was taken to the mortuary pending completion of legal formalities and later on, transported to Kilimanjaro region where it was laid to rest at Mashua Village within Hai District. PW4 continued with the investigation of the accident which finally resulted in the prosecution of the 1st defendant. According to the court proceedings (exhibit PW1/1) and the charge (part of exhibit D2), the 1st defendant was arraigned in the District Court of Bagamoyo and charged with two counts namely, causing death through careless driving and causing damage through 4 careless driving via Traffic Case No. 255 of 2021. Mr. Msengi Fredrick Hamis pleaded guilty to both counts hence he was convicted and sentenced to pay a fine to the tune of Tanzania shillings twenty thousand (TZS 20,000/=) or imprisonment for a term of twelve (12) months in respect of the 1st count and a fine of Tanzania ten thousand (10,000/=) or imprisonment of six (6) months in respect of the 2nd count. Upon conclusion of the traffic case, other procedures ensued including filling in a final report on the particulars of a road accident (part of exhibit P27). On 6th September 2021, Msengi Fredrick Hamis (DW2) in the company of the 2nd defendant’s son Nicholaus Fred Magabe went to report the accident to the insurance broker Sharp Finances Services Ltd. Thereat, they were instructed and guided to fill in a claim form. The broker retained the original claim form whilst DW2 (the 1st defendant) was supplied with a copy of it. Upon the appointment of the plaintiff as administrator of the deceased’s estate, he engaged the Kings Law Chambers to pursue his claims. As such, on 8th April 2022 and 19th May 2022, the said law firm served the 3rd party with demand notices (exhibits D2 collectively). However, the efforts to settle 5 the matter amicably proved futile hence this suit. Upon service, the 1st and 2nd defendants filed a joint written statement of defence (joint amended written statement of defence dated 11th May 2023). In essence, the defendants disputed the damages claimed by the plaintiff but admitted the particulars of the alleged accident including the death of the late Emmanuel Wilfred Kileo. The defendants also successfully moved the Court to join the 3rd party. In their defence, the 1st and 2nd defendants stood as DW2 and DW1 respectively. Also, through Mr. Fred Richard Magabe (DW1), the defendants tendered one document namely, the printout of email communication between Jonas Rutabingwa (DW3) and the defendants. It is noteworthy that PW1 testified orally whereas the remaining witnesses adduced their evidence through witness statements in terms of Order XVIII of the Civil Procedure Code. On its part, the 3rd party vehemently disputed both the particulars of the accident and the damages claimed by the plaintiff. Specifically, the 3rd party contended that the alleged accident did not involve motor vehicle No. T323 DMK but rather T 223 DMK. She claimed that according to the court 6 proceedings which were attached to the demand notice dated 8th April 2022 (exhibit D2), the motor vehicle that knocked the deceased and consequently killed him is T 223 DMK and not T 323 DMK. In support of its defence, the 3rd party paraded one witness named Jonas Joseph Rutabingwa (DW3) who also tendered three sets of documents namely, two demand notices dated 8th April 2022 and 19th May 2022 together with their attending annexures (exhibit D2 collectively), print out of email communication dated 11/04/2022 between the intermediary and the 3rd party (exhibit D3), and a letter purportedly authored by the Resident Magistrate in Charge of Bagamoyo District Court dated on 03/08/2022 describing the motor vehicle that was allegedly involved in the accident as per the record of traffic case No. 255 of 2021 (exhibit D4). In sum, that was the evidence for both parties. Having provided a resume of the parties’ evidence and their respective contentions, it is incumbent on me to determine the issues in dispute. On 20th September 2023, this Court (Hon. J.F. Nkwabi J) with the consensus of the parties framed and recorded the following issues: 7 1. Whether the 1st defendant was reckless or negligent in discharging his responsibility as a driver. 2. Whether the motor vehicle with registration No. T 323 DMK Toyota Coaster was involved in an accident on 31st August 2021. 3. If the 2nd issue is answered in the affirmative, then whether the 2nd defendant intimated the said accident to the 3rd party. 4. Whether the death of one Emmanuel Wilfred Kileo was due to an accident that was alleged to have occurred on the 31st of August 2021. 5. Whether the motor vehicle with registration No. T323 DMK Toyota Coaster involved in the fatal accident is the property of the 2nd defendant. 6. Whether the said motor vehicle was insured by the 3rd party during the occurrence of the said fatal accident. 7. Whether the 3rd party has the duty to indemnify the 2nd defendant. 8. To what reliefs are parties entitled? From the above issues, it is common cause that some issues are closely kindred and for this reason, I shall determine them conjointly. 8 During the hearing of the case, Mr. Boniface Erasto and Mr. John Chogoro, learned advocates represented the plaintiff. On the adversary side, Mr. Greyson Rweyemamu, learned advocate appeared for the defendants whilst the 3rd party enjoyed the services of Mr. Allen Nanyaro and Ms. Tabitha Maina, learned advocates. At the close of the hearing, this Court granted leave for the parties to file final written submissions. I am grateful that all counsel filed their respective submissions accordingly. Indeed, the submissions are quite instructive but I will not reproduce them verbatim. Suffice it to say that I have had an occasion to read and consider them in my deliberations. Starting with the 1st and 2nd issues, there is evidence of Joseph Kamil Mashue (PW4), the investigator of the accident, Msengi Fredrick Hamis (DW2), the court proceedings (exhibit PW1/1), and a rectification order (exhibit PW1/2). The foregoing evidence has it that on the 31st August 2021, the 1st defendant Msengi Fredrick Hamis (DW2) drove motor vehicle No. T 323 DMK Toyota Coaster negligently as a result knocked to death the deceased Emmanuel Wilfred Kileo. The court proceedings (exhibit PW1/1) and a charge in respect 9 of traffic case No. 255 of 2021 (an attachment of a demand notice (exhibit D2) read together with the rectification order (exhibit PW1/2) are quite clear that the 1st defendant was charged and convicted of the offence of causing death through careless driving contrary to section 41 and 63(2)(b) of the Road Traffic Act. Further, the charge that was tendered by the 3rd party throughout mentions the motor vehicle No. T 223 DMK Toyota Coaster which was rectified through the rectification order (exhibit PW1/2). Besides, PW4 who went to the crime scene and took part in drawing a sketch map, among other things, was very clear that the 1st defendant was driving motor vehicle No. T 323 DMK Toyota Coaster. The 3rd party claimed that the motor vehicle that was involved in the accident was T. 223 DMK. She heavily relied on the letter purportedly issued by the Resident Magistrate in Charge of Bagamoyo District Court (exhibit D4). However, having strenuously scanned the contents of exhibit D4, and particularly by considering that it is neither a court order nor was it authored by the presiding magistrate, I accorded no weight to it. On that account, I answer the 1st and 2nd issues in the affirmative. 10 The 3rd issue is if the 2nd issue is answered in the affirmative, whether the 2nd defendant intimated the said accident to the 3rd party. On this, there was evidence of Msengi Fredrick Hamis (DW2) who told the court that on 6th September 2021, he and the 2nd defendant’s son Nicholas Fred Magabe went to the offices of Sharp Finance Service ( the intermediary) and reported the incident. They were as such issued a motor accident claim form (part of exhibit PW1/5/A/B/) and guided to fill it. While answering the questions by Mr. Boniface Erasto in cross-examination, Mr. Jonas Joseph Rutabingwa (DW3) admitted that it was sufficient for the 2nd defendant to report the accident to Sharp Finance Service (the intermediary). DW3 also conceded that it was the broker’s duty to guide the insured in filling out the claim form. He also confirmed that Sharp Finance Services was the 3rd party’s intermediary. Moreso, looking at the contents of the email communication between Mr. Jonas Rutabingwa (DW3) and Mr. Elia Maphina of Sharp Finance Service which was admitted as exhibit D3, it impliedly tells that the intermediary was aware of the accident. According to exhibit D3, Mr. Jonas Rutabingwa (DW3) sent an email to Elia Maphina on 8th April 2022 at 11:47 11 and Mr. Elia Maphina replied the same on the very same date, that is, 8th April 2022 at 12:15 PM. For the purpose of clarity, I let the relevant part of the communication speak for itself; ‘Dear Jonas Please be informed, the accident was caused by a bajaj (motor trycles) that hit a man and later fell on the vehicle mentioned. Therefore actual cause of loss based on proximate cause Therefore due to this insured did not intimate this as liability was not against him. Best regard Elias Maphina’ Indeed, the above excerpt tells it all that the intermediary was informed and therefore aware of the accident although he pretends that the insured did not intimate the accident. To crown it all, the 3rd party did not see the reason to bring this important witness who would have controverted the evidence of DW2. In view of the foregoing analysis, I firmly answer the 3rd issue in the 12 affirmative. Coming to the 4th issue namely, whether the death of one Emmanuel Wilfred Kileo was due to an accident that was alleged to have occurred on the 31st day of August 2021, there is no dispute that Emmanuel Wilfred Kileo is deceased. This fact is also proved through burial and death certificates (exhibits PW1/17 and PW1/18 respectively). There is a court record to wit, exhibit PW1/1 to the effect that the 1st defendant caused the death of Emmanuel Wilfred Kileo through careless driving. The 3rd party also tendered evidence (exhibit D2) supporting this fact. DW3 adduced a charge in respect of Traffic Case No. 255 of 2021 (part of exhibit D2) which expressly alleges under the particulars of offence that Msengi Fredrick Hamis through carelessly driving motor vehicle No. 323 DMK caused the death of Emmanuel Wilfred. I thus answer the 4th issue affirmatively. The 5th and 6th issues are intertwined hence I shall determine them jointly. They are: whether the motor vehicle with registration No. T 323 DMK Toyota Coaster involved in the fatal accident is the property of the 2nd defendant and whether the said motor vehicle was insured by the 3rd party during the 13 occurrence of the said fatal accident. There is evidence from Fred Richard Magabe (DW1) that the motor vehicle with registration No. T 323 DMK Toyota is his own property. His evidence on this is supported by the motor vehicle registration card (exhibit PW1/3), the motor vehicle interim cover note (exhibit PW1/5/A/B/) which indicates the 2nd defendant to be the owner of the motor vehicle in dispute. In a similar vein, exhibit PW1/5/A/B/) is clear that the motor vehicle with registration No. 323 DMK Toyota was insured by the 3rd party from 21/01/2021 up to 20/01/2022. To add up, DW3 admitted during cross-examination that at the time of the accident, the motor vehicle with registration No. T 323 DMK Toyota was insured by Alliance Insurance Corporation, the 3rd party. Thus, without further ado, I answer the 5th and 6th issues affirmatively. The 7th issue is whether the 3rd party has the duty to indemnify the 2nd defendant. Since the 3rd party admits that the motor vehicle with registration No. T 323 DMK Toyota was insured at the material time as demonstrated above, it goes without saying that Alliance Insurance Corporation is duty- bound to indemnify the 2nd defendant in the event the court holds him liable. 14 See the case of Sanlam General Insurance Tanzania Ltd (Formerly Known As Niko Insurance Tanzania Ltd vs Denis Charles and Another, Civil Appeal No. 51 of 2021 CAT at Mbeya and Section 10 of the Motor Vehicle Insurance Act. Section 10(1) of the Motor Vehicle Insurance Act provides: (1) If, after a policy of insurance has been effected, judgment in respect of any liability as is required to be covered by a policy under paragraph (b) of section 5 of this Act (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. 15 On the strength of the above provision, the 7th issue is also affirmatively answered. Lastly, to what reliefs are parties entitled? From the foregoing discussion, it is clear that the plaintiff was wronged. The deceased’s life was terminated due to a breach of a duty of care that the deceased owed the 1st defendant. It is an established principle of law that where there is a wrong there is a remedy. See the case of China Henan International Co-operation Group Co. Ltd v Salvand K.A. Rwegasira, Civil Appeal No. 57 of 2011 (unreported). In that regard, the plaintiff is entitled to a remedy from the defendants. The plaintiff claimed specific damages to the tune of Tanzania shillings seven hundred fifty-one million three hundred fifty-six thousand one hundred forty- seven (TZS 751,356,147/=). Under paragraph 4 of the amended plaint, the plaintiff provided the following particulars of the claimed special damages: One, TZS 338,000,000/= being the amount the deceased would have earned for 27 years had he not died at 33 years old. He amplified that the deceased was employed by Camusat company and was paid a monthly salary of 16 TZS 1, 200,000/= thereby making a total of TZS 14,400,000/= per annum. Two, TZS 275,946,147 being NSSF contributions he would have made. The plaintiff contended that the deceased was contributing TZS 851,685.64 per month. Three, TZS 98,975,360/= being the turnover of the company to wit, Leemtech Limited in which the deceased was one of the shareholders. Four, TZS 72,000,000/= being the expected profit the deceased would have made from his hardware business. Five, TZS 16, 035,000/= being costs incurred for funeral services. In a bid to prove the specific damages, the plaintiff tendered several documents including the deceased’s contract of employment with Camusat Company (exhibit PW1/8/A/B/C), Camusat salary slip (exhibit PW1/9), NSSF yearly contributions breakdown (exhibit PW1/10), ABSA account bank statement No. 1078311, /Leemtech company’s account bank statement (exhibit P20). I have given earnest attention to the documents tendered. From the deceased’s salary slip (exhibit PW1/9), and NSSF yearly contributions breakdown (exhibit PW1/10), it is clear that the deceased’s monthly income was fluctuating. For example, in May 2021 his gross pay was 17 TZS 1, 622,222.22 whilst in June 2021 the gross pay was TZS 1,200,000.00. Likewise, according to the NSSF yearly contributions breakdown (exhibit PW1/10), in May 2021 his contribution was TZS 324,444.44 whereas in June 2021 it was TZS 240,000.00. This explains that it was wrong to compute the specific damages based on flat rates. Further, it is a common cause gross pay does not entail deductions such as pay as you earn, NSSF contributions, and the like. The plaintiff calculated the deceased’s expected income as if he was taking home the whole gross salary. It is a trite law and I need not cite any authority that not only should the specific damages be specifically pleaded but also they must be strictly proved. On my part, based on the above appraisal of the evidence, I am of the unfeigned findings that the plaintiff has failed to strictly prove the specific damages to the tune of Tanzania shillings seven hundred fifty-one million three hundred fifty-six thousand one hundred forty-seven (TZS 751,356,147/=). Notwithstanding the above, the plaintiff also prayed for general damages as may be assessed by the Court. It is settled that general damages need not 18 be strictly proved. Indeed, it has been sufficiently established that the late Emmanuel Wilfred Kileo had a reliable income as he was employed by Camusat Company. It was also proved that the deceased was survived by a daughter called Success Emmanuel who solely depended on him. In the case of China Henan International Co-operation Group Co. Ltd v Salvand K.A. Rwegasira (supra) the Court of Appeal held; ‘… it is a fundamental legal principle in the administration of justice that there is no wrong without a remedy ‘ubi jusi ibi remedium’. So, although the respondent has failed to prove the special damages he pleaded, there is no doubt in our judgment that some wrong was committed. So, he cannot be left without a remedy. We think that justice of the case demands that we give him some relief. We do so under ‘any other reliefs’ which he had prayed for his plaint’. It is against the above factual background and the legal position I am satisfied that the plaintiff is entitled to general damages. In that regard, it is 19 my considered opinion that the sum of Tanzania shillings one hundred million (TZS 100,000,000/=) would meet the end of justice. In terms of Section 10(1) of the Motor Vehicle Insurance Act, the said sum plus other costs should be paid by the 3rd party Alliance Insurance Corporation (the insurer). On all the above account, I enter judgment and decree in favour of the plaintiff and proceed to order as follows; 1. The plaintiff is entitled to general damages to the tune of Tanzania shillings one hundred million (TZS 100,000,000/=). 2. Interest at the court rate of 7% on the decretal sum under (1) above from the date of judgment to the date of satisfaction in full. 3. The plaintiff is entitled to the costs of the case. 4. The 3rd party is ordered to pay the plaintiff a sum of Tanzania shillings one hundred million (TZS 100,000,000/=) under (1) above and other costs associated with this case. It is so ordered. The right of appeal is explained. 20 Dated at Dar es Salaam on this 18th day of December 2024. A.A. Mbagwa JUDGE 18/12/2024 Court: The judgment has been delivered in the presence of Mr. Boniface Erasto and Mr. John Chogoro, learned advocates for the plaintiff, Mr. Grayson Rweyemamu, learned advocate for the defendants, and Mr. Allen Nanyaro and Ms. Tabitha Maina, learned advocates for the 3rd party on this 18th day of December 2024. A.A. Mbagwa JUDGE 18/12/2024 21