20160830 TZHC Mwanza

IN THIE HIGH COURT Of TANZANIA ATMWANZA CIVIL APPEAL NUMBER 55 Of 2015 {Originating From Civil Case Number 6 Of 2013 Of The District Court Of Magu At Magu., Kente., Rm} Sanlam General Insurance Tanzania Limited (FORMER NICO INSURANCE (T) LTD) ........... u . . APPELLANT VERSUS REV EMANUEL BONIFACE .... u . . . . . . . 1 ST APPELLANT PIETER ·TINO SHIJA ........... ......... e.2No RESPONDENT JUDGMENT 26.08.2016 & 30.08.2016 MATUPA, J. This is a first appeal in. a claim under insurance contract for the recovery of certain damages from the insurer, the appellant insurance company. When the matter proceeded before the District Court of Magu the app_ellant was operating · under the name· of NICO insurance ·(T) limited. The suit was therefore determined against a legal person going. by that 1 name. In the meantime, the appellant has changed its name, and now it is trading by a new name of SANLAM GENERAL INSURANCE COMPANY. There was no abjection for the . . appellant to appeal on the new changed name. There was an undertaking in this court that, but for the change of name, the appellant assumed the same obligations and liabilities as was· the case while in the former npme. In other words, it was the same company and with the same shareholding. On the genesis of the claim, it would appear that the first respondent was . c:1t the time of the claim or immediately thereabout the owner of a motor vehicle make Isuzu forward with registration number T181 ABM. On the material date, the respondent . was a passenger . in a common_ carrier vehicle, an . Isuzu mini bus which on the 14th day of March, 2010 was plying alo·ng Musoma and Mwanza road. While in the public carrier bus, the two motor vehicles sustained an accident. whe_reby the respondent sustained fatal injuries and lost his leg, which had eventually suffered amputation. It transpired that at the time of· 2 the accident, the Isuzu Lorry vehicle was driven while it was ). impaired with mechanical defects, which incapacitated its ability ·to stop or to make efficient manoeuvres on the road. As a · result of the impairment, it sustained the accident with the public carrier vehicle and a number of passengers boarded therein were seriously injured, including the apperlant. The appellant claims that he sought compensation from the insurers of the lorry who- were the former NICO insurance company LTD. As this was going on, the police was taking legal action against the owner of the vehicle. However the appellant has averred in these submissions that, ther~ was ·a delay in arriving at an amicable settlement of the claim. When th.ere was an· apprehension that the discussion was in .a verge of collapsing, the respondent resorted to court action. Before the district court of Magu, the respondent claimed compensation of both, special as well. as general damages . . arising-from ~he injury. He itemized the grounds ·of-the spe~ial · damages .and as is the procedure, gave a rough estimate of the 3 general damages. At the conclusion of the trial, the learned trial magistrate sustained the claim and awarded all the damages as claimed. It is noteworthy that at the trial, the question of . . limitation was taken as· a preliminary point of law. The court wanted it to be triable and accordingly directed that the same . be dealt with in the course of trial. Unfortunately this was not seriously canvassed. In this appeal,. the appellant has invested much of his time canvassing the question. Since a preliminary objection of the law that touches on the jurisdiction of the court has to be disposed of at the earliest, I will deal with it first. Other grounds of appeal as follows; that the trial court . was in err in awarding the damages without considering the principle~ on assessment of g_eneral damages, that the special. damages were not supported by evidence, the appellan~ was wrongly enjoined to pay damages under the circumstances of the case where_ there was a breach of conditions of the po_licy. And that the driver was ·authorised to drive the ·motor vehicle · while he was not qualified, and that there were irregularities in 4 . the trial in that the pre-trial conference and mediation was not held in this case and that the appellant was treated as a second defendant instead of a third party. Before me the appellants were represented by Mr Msechu learned advocate and the respondent had the services of Right Mark Attorneys and the second respondent$ were assisted by Kweka Law chambers. As intimated, r have chosen to start with the issue of limitation. The appellant has belaboured on" the issue at length believing, rightly so, that the disposal of the issue in th_eir favour will also dispose of the .appeal. The appellant has premised his contention on the accrual of the right of action and computation of the period of limitation. It is not in dispute that the accident occurred. on the 14th · March,. 2010. This is what is contained in the pleadings and the ev_idence. It is also note seriously denied that the suit before the. lower court was instituted on the 29th of April, 2013. It is · contended th·at by the time the su1t was instituted, already the period ·of limitatkjn had elaps_ed by more.than one month .. 5 The appellant has invited this court to the provisions of section 6(e) of The Law If Limitation Act that reckons the accrual of the period of limitation in relation to cases of injuries in the following terms ''In the case of a suit For compensation For a wrong which does not give rise to a cause of actiqn unless some specific injury actualy results therefrom the right of action shall accrue on the date when an injury result From such wrong" Mr Msechu has contended that since the appellant suffered injuries on the same day the wrong was committed it was his contention t~erefore that the right of action accrued on the same day the wrong was committed, Hence, the time started· to run immediately. The counsel has relied on a number of cases to substanfiate that submission. He has referred me to cases of Watemnde Omary Versus PSRC and others/ Civil.case no 117 of 2005 (HC) and Mathew Martin versus the Managing Director, Kahama . Mining Corporation. Civi I case no 79 of 2006(HC) both Kalegeya J (as he then w_as); for authority that ,. limitation of actions is a statutory imperative and it has to be upheld whatever the outcome, whether or not it has been raised by an adverse party. This position was not controverted and indeed this is a settled interpretation of secti_on 3 of the Law of Limitation Act 1 need not emphasise any further. I have also been referred to the case of A.S. NEREMCO Construction {NEREMCOJ VERSUS Dar es Salaam Water And Sewerage Authority {DAWASAJ Commercial case number 47 of 2009 to further buttress the point that objection for limitation cannot be defeated on account of it having not been raised in the written statement of defence since it can as well be raised by notice if not so raised by a written statement of defence. Indeed Kibela Judge was also_ called into aid in his decision in the case of M/S MASASI Construction Co. Limited Versus Permanent Secretary Ministry of Agriculture civil case humber 100 of 2009, (HC.) · to underscore the point that there may not . be need to ar:nerid a written statement of defence merely for purpos~s of rais.ing the objection. The same stan~e was ~ 7 underscored in the cases Mkejina Athumani versus Mohamed Ally Rashid Director Kinondoni Municipal Council land appeal number 6 of 2008, Mziray J. (as he then was) Rhino Security Guards Services CO LTD versus NIC {TJ LTD civil case number 252 of 2000 HC, and the Court· of Appeal case Kanjubhai M. Patel .Versus Dahyahhai F. Mist~ Civil Appeal number 58 of 1997 unreported. I have underscored that the foregoing position, which was after all, not generally controverted. Indeed, the casual reply of the Second respondent joined hands with the position. The reply of the first respondent was a bit in_triguing. He took the position that since the respondent was constrain~d with the traffic case that followed the accident and that the cause of action arose after the determination of the traffic case it was not time barred. I need not detain myself with the casual stance of counsel for the First respondent on the matter. Suffic~· to point out that his interpretation ·is not_ in accord with. 8 the plain wording of section 6 ( e) of the Law of Lin1itation Act aforesaid nor is it supported with any case law that is known. The foregoing position is not .to say that I agree with the· parties that the cause of action that accrued on the day the· second defendant sustained and injury had lapsed on the day the suit was filed in court. Paragraph 9 ·of the appellant's plaint avers as fol lows "That the plaintiff in various communicated attempted amicably settle this matter but in vain, copies of letters dated gh day of November, 2010 and· 25h March 2011 are · attached and marked as Annexture A-3" The fact that there was a communication between the insurance company and the second appellant was readify admitted by the officer of the insurance company. He admitted before the trial court below that he was responsible for preparation of the Discharge form which for some reasons which were not apparent was not carried through. This fact was not disputed, much so as it came from the ·witness for the 9 appellant in defence at the trial. The issue here is, what should be the effect of an admission, that there were negotiations and. a proposal from the appellant to pay a certain amount of money in discharge of the claim? Certainly, I am not suggesting here that the proposal that was given by the appellant on "without prejudice" basis was binding on the company. Not at all. I am addressing the effect of the invitation to agree to a proposal on the statute of limitation. The invitation to consider the claim in my opinion triggered a fresh accrual of the right of action in terms of Section 27 (3) of the -Law of limitation Act, which provides as· follows "Where aright of action has occurred to recover a · debt or other pecuniary claim, or to recover any other movable property whatsoever, or ·to recover any sum of money or other property under a decree or order oF a· court and the person lia.ble or accountable. _therefor acknowledge s the claim or makes any payment in respect of it, the right of action in respect of such debt p~cuniary claim or movable property or · the cause oF act/on in respect of an· application for . the execution pf the Decree or the enforcement of · 10 the order shall be deemed to have accrued on and not before the date of the acknowledgement or as the case may be the date of the last payment" I am aware that there has ·been a rich discussion on whether admissions made on "without prejudice basis'' would be covered under the fresh accrual rule. There a lines of authorities· on the matter, tha~ admits that the engagement to negotiate must be done in good faith, where a person is put in a position of expectation of a constructive· engagement. It is now agreed that the person shall not be prejudiced by the engagement to negotiate. In a Kenyan case of Gatune vs. The Headmaster;, Nairobi Technical High School & Another_[1988] KLR 561, it was held that: "... the Attorney General occupies a. crucial role in litigation and protracted negotiations with him in form payment of damages are taken seriously and a · reasonable lay claimant would feel that by negotiating with him/ the Attorney General had invited him to delay court· proceed!ngs and that he . would not be prejudiced by the delay. The reason for . this is to be found in the fact that the limitation Act does · not extinguish a suit or action · itself,· but 11 . operates to bar the claim or remedy sought for, and when a suit is tin1e-barred, the court cannot grant the remedy or relief. Therefore where circumstances permit · the cause of action which is barred as opposed to being· extinguished 1s capable of being revived. See Rawal vs. Rawal /19907 KLR 275 and Iga vs. Makerere Universityf1972lEA 65." Similarly, in another Kenyan of Rosemary Wanjiru Kungu ·v Elijah Macharia Githinji & another [2014] eKLR it was stated that: ''In the resule where the defendant or his representative such as the insurance company leads the plaintiff to believe that the claim is capable of being settled and in reliance thereof the plaintiff or his advocate refrains from filing the suit until after the limitation has run its course/ that may constitute a good ground For extending time notwithstanding the provisions of section· 27 aforesaid. At the time of the applicatio'! for extension of time as was held in. Lucia ·. Wambui Ngugi vs.··Kenya Railways & Another, the court assumes that the facts as deposed in the supporting affidavit are true. It was therefore upon the defendant · at the hearing to_ challenge the grounds upon which the. order extending time was granted. Whereas the defence concentrated on the provisions of section 27 of 12 the limitation of Actio11s Ac~ no serious challenge was ) directed to the issue of negotiations. I am therefore unable to find that the order extending time to file the suit was not properly granted." Elsewhere in the United States under the foregoing circumstances, the doctrine of tolling over would apply. For example; in the case of Peloso versus Hartford fire insurance co 267 A.2d 498 at 501(N.J.) 1970 it was held that where the parties negotiated for 9 months, during this time- the statute was tolled. In the present case it is on record- that the first Defendant wrote to the appellant, then going by the name of NICO insurance company limited a claim on the 26th December 2010. The letter was addressed to . Ndege insurance brokers, requested an answer within fourteen .days. The letter was not replied. Instead a discharge form was given not denying the _claim but suggesting a discharge of. liability on "a without prejudice ~asis". This was done through a form· which was not dated. The discharge of the claim was to be at a consideration 13 of shillin_gs two million five hundred thousand only (2,500,000/= ). In the meantime it would appear that the appellant had sought the assessment of the First respondent's · injury from Mwananchi Hospital of Mwanza, which assessed the . injury at 90% loss of function on the right lower limb. The First respondent declined the proposal, hence this suit. It is in this background that the appellant is contending that the suit was time barred. This complaint is definitely bad. The. time wasted by the appellant must be tolled in terms of section 27 (3) of the Law of limitation Act and the cause of action must accrue again following an engagement in good faith by the first appellant. The claim was therefore made within the limitation period. Should the period be. counted from the month of March, 201 l which I . think was proximate to the time the first . . respondent rece\ved the proposal and declined it, the period of three years would run to march 2014. I am unable to fix the date because the proposal ·was not dated nor was the date of receipt exhibited. In the result, this ground_ of appeal fails and I 14 dismiss it. It is my holding that this matter was within the period of time. On the second ground of app~al it has be~n contended that the learned trial magistrate erred in not complying with preliminary procedures of pre-trial and mediation, thus offending the mandatory requirements of orders VIIIA & VIIIB. Again the trial magistrate has been assailed for the failure to frame issues of the case and dispose of the case by addressing the issues seriatim. On the failure to hold a pre-trial conference, the learned advocate has not referred to me any . authority for the proposal that the failure to so observe the procedure renders the proceedings a nullity. I must admit that the procedure is basically intended for speedy disposal of cases. It is not intended to take away the jurisdiction of the court. However, since the procedure is however, it is true that the magistrate was in err when he failed to. comply with the . mandatory procedure . of rules VIII A and VIII B. 15 Rule 2 and 3 of Order VIIIA directs as follows 1. ''............ . 2. The Chief Justice may by Notice published in the Gazette exempt any art of the High Court or any subordinate court from the application of any rule or under this order in respect of all cases or a particular class of cases for a specified period of time 3. In every case assigned to a judge or magistrate/ a first scheduling and.settlement conference attended by the parties or their recognised agents or advocates shall first be held and presided by such judge or magistrate within a period of twenty one days after the conclusion of the pleadings for the purpose of ascertaining of speed track of the case/ resolving the case through negotiation/ mediation/ arbitration or such other procedure not involving a trial." As can be gathered from the foregoing rule 3, the intention to hold the pre-trial conference is very clear .. That is to attempt to resolve the dispute amicably through negotiation, mediation or arbitration. As can be seen, the· defendant was not at ·apposition to mediate as the process - was attempted . . and failed even . before trial. This is· not . a . reason though, for the court not to avail the parties the I • opportunity to once again resolve their dispute. The trial court was obliged by the rule to do the scheduling. This rule was meant to be observed and not to be defied. I have observed the background of this flaw I am constrained to observe that the appellants have a bigger share of blame in it. The proceedings show that on the 21 st November, 2013 the matter vvas set for hearing, following a dismissal of a preliminary objection of the defendant, the appellant herein, it was set for hearing on the 5th December, 2013. On that later date again the appellant was not present. On that former date (21st November 2013) before the case was adjourned, there were two confusing pieces of information. At first the respondent told the Court that the appellant's advocate was not present. Upon this information, the court ordered the case ·to proceed ex parte. · After the order was- given, the respondent who it would· appear was appe~ring in person, told the court that the ·appellant's advocate was at the High court. The trial 17 magistrate set the date for hearing of the case ex parte. Accordingly, he adjourned the case to the later date i.e 21st November, 2013, with an understanding that the case would continue ex pa rte. Again on · the 5th day of December, 2013 neither the appellant nor their advocate appeared. The case was adjourned again to 20 th December, 2013 for hearing at the instance of the respondent's advocate on the ground that he did not have the documents. It is noteworthy that on that later date again the court was informed that the Defendant was served but neither' the appellant nor their advocate appeared. On this day issues were framed ex parte and counsel for the respondent Mr Mwanalyela informed the court that he would call two witnesses. The matter was set for hearing on the lih January, 2014. On that later date the respondent informed. the court that coun~el for the appellant was attending to his $ick child and that botD ·parties were agreed that th~ case w9uld come. for 18 hearing on the on the 5th February, 2014. On that later date the case was again set for third party proceedings as the court allowed a third party. notice to issue to the appellant, then trading as NICO insurance. It took three months for the appellant to serve the third party notice. Consecutive adjournments ensued. Sometimes on gt~ May, 2014 the court was informed that the pleadings were complete. Up to this point, I have scanned through the series of orders, I have found nowhere on the record where it is shown that the order for ex-parte proceedings were vacated. The validity of the third party notice is therefore wanting as it was made by a party who was not validly before the court as the procedure under ·order IX rule 7 was not complied with. It is not in order, for a party to walk out of the court and walk back into the court without permission. The rules are in place to ensure orderly disposal of matters. The appellant has complained that the requirements of order VII Rules 2 and :3 were not compli~d with and wants 19 this court to vacate the decision on that ground. Given the foregoing chronology of events, it is apparent that the procedure was flawed precisely because of the appellant's greater contribution of the mistakes. I do agree with the appellants though, that the· magistrate was in err when he· proceeded from 5th day of February, 2014 without first making ·a decision to vacate the order for the ex-pa rte hearing. This would pave the way for Order VIIA rule 2 and · 3 to be complied with. Since the ex parte order was not vacate the latter procedure was not complied with, hence · the chaos. In the result, this appeal succeeds in part. It is my holding that the suit is within time. All the proceedings . . from the 5th. day of February, 2014 are hereby nullified for they involve a party who was not supposed to appear before the court. The matter shall be placed before another magis_trate who shall proceed from there_· in accordance with order IX rule 6 of the Civil Procedure Code. From the decision I have made and 20 the conduct of the appellant and their advocate, I will not / make an order as to costs. It is so ordered. ' .21 . . . Dat,e: 30.08.2016 I f:) \ ,:,, ConJm: hon. S.B.M.G. Matupa, J Appellant: Happiness ho_lding brief for Msechu Advocate for the Appellant. Respondent: 1st present 2nd absent B/C: Kaijage Happiness: This case is set for judgment .and we are ready for the ruling. Court: The judgment is read in chambers this 30th day ·of August, 2016 before the Respondent and M/S Happiness holding brief for Mr Msechu for the appellant this 30th day of August, 2016: .· ~l s~ · . MATUPA, JUDGE At Mwa.nza"" . . . ·i ..:':. . ~ 30 th August, :ip16· . • ,,:''.'-> : 1 22