PC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY

AT ARUSHA PC CIVIL APPEAL NO. 22 OF 2023 (Coming from Civil Appeal No. 75 of2022 at the District Court ofArusha at Karatu. Emanated from Civil Case No. 169 of2022 ofArusha Urban Primary Court.)

SELEMANI ADAM APPELLANT

VERSUS

DUSHYANT SINGH RESPONDENT

JUDGMENT 17/05/2024 & 07/06/2024 BADE, J. The Appellant above named, being aggrieved by the Ruling of Arusha District Court dated on 18/05/2023 delivered by Hon. D. J Msoffe, Principal Resident Magistrate appeals to this Court against the aforementioned decision on the following grounds: i. That the first appellate court erred both in law and in fact when it upheld the decision of the trial court which ordered appellant to be paid TZS 200,000/= and TZS 100000/= as general damages as a result of assault done by the respondent. Page 1 of 13 ii. That the first appellant court erred both in law and in fact when upheld the decision of the trial court which declared that appellant had already being paid TZS 100,000 as a damage in a criminal case without appreciating that, the decision and order from the criminal case is different from the civil case. iii. That the first appellate court erred both in law and facts when upheld the decision of the trial court when ordered appellant to be paid TZS 10,000/= as the costs of the suit without ascertain the reasons for the decision. iv. That the first appellate court erred both in law and facts when upholding the decision of the trial court which failed to evaluate and consider the evidence adduced by the appellant and her witness during the trial and hence reached into erroneous decision. The factual background of this appeal trace wayback

to Criminal Case no. 2564 of 2021 which was instituted by the Appellant before Arusha Urban Primary Court against the Respondent, claiming that the Respondent assaulted him. After hearing the evidence of both side on the said criminal case the trial magistrate ruled that the Appellant managed to prove the case against the Respondent beyond a /^Page 2 of 13 reasonable doubt. The Respondent was conditionally discharged and was ordered to pay the Appellant compensation in the tune of TZS 100,000/=. After the conclusion of the said criminal case, the Appellant instituted a civil case against the Respondent via Civil Case no. 169 of 2022, before Arusha Urban Primary Court claiming a total of TZS 4,677,674/= being specific damages, general damages, and cost of the suits. After hearing the evidence of both sides, the trial magistrate awarded the Appellant TZS 200,000 being treatment costs he incurred, general damages to the tune of TZS 300,000, and the fee of the institution of suit to the tune of TZS 10,000 which make a total of TZS 510,000. The Trial Magistrate then extracted the total amount of TZS 100,000 amount which was paid to the Appellant in the criminal case as compensation. The Appellant was awarded TZS 410,000 in total. Being aggrieved by the said decision the Appellant lodged the instant appeal. This appeal was disposed of by way of written submissions. The Appellant was

represented by the Mr. Hamisi Mkindi, learned advocate from Legal and Human Rights Centre. Unfortunately, the Respondent did not submit his written submission as ordered by this Court. Page 3 of 13 With regard to the 1st ground of appeal, Mr. Mkindi submitted that it is not in dispute that the Respondent maliciously assaulted the Appellant as it is proved by Criminal Case no. 2564 of 2021 before Arusha Urban Primary Court where the Respondent was convicted and sentenced for assault, and that the conviction and sentence of the Respondent was the gist of Civil Case No. 169 of 2022 before Arusha Urban Primary Court. Moreover, Mr. Mkindi submitted that in law, damages are an award typically of money, to be paid to a person as compensation for loss or injury. He argues that damages are classified as compensatory damage and punitive damage and that punitive damages are not awarded to compensate the plaintiff but to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff, while punitive damages are awarded only in special cases where a defendant acted in blatant negligence, with malice or in a grossly reckless manner. Mr. Mkindi further argues that it is a cardinal principle of the law that awarding of damages is the discretion of the court, supporting his position with the case of Tanzania Saruji Corporation vs

African Marble Company Ltd [2004] TLR 155. He maintains that even though the award and quantum of damages are in the discretion of the Page 4 of 13 court, the decision of the first appellate court which upheld the decision of the trial court that awarded the Appellant TZS 300,000 as general damage is questionable as the quantum of the damage is very low. To buttress his argument, he cited the cases of Zuberi Augustino vs Anicet Mugabe [1992] TLR 137 and Naushad M.H Virji vs Tanz International F.S Ltd and Another [1982] TLR 154. Mr. Mkindi opined that the Appellant is entitled to both specific and general damages including punitive damages to cover pain, suffering, emotional distress, medical expenses, and loss of earnings as he lost his job; but this was not considered by the trial court and the 1st appellate court. To cement his position, he cited the case of Razia Jaffar Ali vs Ahmed Ali Sewji and 5 Others [2006] TLR 433. In further argument, Mr. Mkindi contended that this court has the power to re-evaluate the orders of the trial court and first appellate court checking whether the court's finding was grounded on the evidence available or otherwise, and that is why the Appellant prays for interference of this court and reverse the orders of the trial court. On the 2nd ground of appeal, Mr. Mkindi argues that trial court and first appellate court misdirected themselves when

held that the Appellant had already paid compensation to the tune of TZS 100,000 in Criminal Case 5 of 13 no. 2564 of 2021, and therefore he was not entitled to further compensation in the Civil Case. He argues that the award of compensation in criminal cases is a punishment imposed to the accused person after being convicted of the criminal offence, therefore it is not a bar to subsequent civil suit for damages resulting from a criminal act. He supports his stance with the case of Eliakimu Jonas vs Victoria Japhet PC Civil Appeal No. 26 of 2016. With regard to the 3rd ground of appeal, Mr. Mkindi proposes that it is a general rule that a winning litigant as a matter of right must be awarded costs, submitting that while costs are awarded at the discretion of the court, this discretion is judicial and must be exercised upon established principles, not arbitrarily or capriciously. He insisted that it was wrong for the first appellate court to uphold the decision of the trial court which ordered the Appellant herein to be paid TZS 10,000 as cost of the suit without ascertaining the reasons for the said decision. Concerning the 4th ground of appeal, Mr. Mkindi argued that the first appellate court and the trial court both failed to evaluate and consider the evidence adduced by the Appellant and his witness during the trial, both of whom established that the Appellant was

maliciously attacked Page 6 of 13 and assaulted by the Respondent, adding that due to the assault the Appellant had sustained pain, suffering and emotional distress. The counsel contended that it is a cardinal principle of our laws that when the first appellate court failed to analyze the evidence, the second appellate can work on the presented facts to draw its own conclusion. He cited the case of Sokoine Chelea vs Republic [2008] TLR 345 After due consideration of this appeal which was undefended, the task before me is to determine whether the first appellate court made an erroneous decision in upholding the trial court's findings and decisions. In answering this issue, I will tackle grounds of appeal as raised by the Appellant, starting with the 1st ground of appeal. The counsel is faulting the first appellate court in upholding the decision of the trial court which awarded the Appellant TZS 300,000 as general damages. General damages are defined in the case of Jafari Hussein Sinai and Another vs Silver General Distributors Limited and Others, Civil Appeal No. 271 of 2017, citing the case of Tanzania Sanyi Corporation vs African Marble Company Ltd [2004] TLR 155 in the following terms: Page 7 of 13 "Genera! damages are as the law will presume to be direct, natural or probable consequence of the act complained of, the defendant's wrong doing must, therefore, have been caused,

if not a sole or a particularly significant cause of the damage." In the case of Naushad M.H Virji vs TANZ International F.S. LTD and Another [1982] TLR 154, the Court stated that in awarding substantial/general damages the court have to consider three things, namely personal injuries; pain and suffering; and loss of enjoyment of life. In the matter under this court's consideration, the complained wrongdoing was assault which was committed by the Respondent to the Appellant. There is no dispute that the Respondent assaulted the Appellant as per Criminal Case No. 2564 of 2021. It is trite law that awarding general damages is the discretion of the court and the said discretion should be exercised judiciously. In awarding general damages as it is expounded in the case of Naushad M.H Virji (supra) the court has to be guided by the extent of personal injuries, pain and suffering, and loss of enjoyment of life endured by the complainant. Obviously, this would be ascertained by evidence. In this matter the Appellant did not adduce any evidence to prove he suffered injuries as a result opthe Page 8 of 13 said assault. He did not produce any medical reports to show the extent of the injuries he had suffered as a result of the alleged assault. The Appellant claimed that after the assault he was treated at Mount Meru hospital, nonetheless the Appellant did not produce any proof from

that hospital to show the extent and nature of injuries he sustained, or if he was hospitalized, to guide the court to ascertain the general damages that he is entitled. Naturally, he cannot fault the trial court to award him TZS 300,000 as general damage. The contention by Mr. Mkindi that the general damage awarded to the Appellant was very low, and that general damage do not need to be specifically claimed and/or proved does not hold water since as expounded above, the appellant was required to show the extent and nature of injuries he had sustained to enable the court to ascertain a reasonable damage to be awarded to him. That is the judiciousness that the counsel had proposed to be abided to but he failed to so do to guide the court to a just decision. The Appellant also failed to link the assault and the loss of his job as he claimed. Having said so this ground is dismissed for want of merit. Regarding the 2nd ground of appeal where the Appellant faulted the decision of the trial court to extract TZS 100,000 from the total amount of TZS 510,000 that he was awarded. It is on record that after the Page 9 of 13 Respondent was found guilty in the Criminal Case, he was ordered to compensate the Appellant TZS 100,000. It is also on the record that the Appellant received the said amount. I can not see any fault by the trial court to order a reduction of such amount as the

Appellant cannot be compensated twice. In my view, if he was not satisfied by the said amount he could have supposedly appealed against that particular decision. Instead, he did receive and had this amount. The argument by the counsel that compensation in criminal cases is a punishment imposed to the accused after being convicted of the criminal offence is misconceived as certainly, compensation is not the same as a punishment. It is compensation for loss or damage caused by the convicted person, which is why it is awarded in addition to a sentence given to the offender, being a fine, jail term or conditional discharge, etc. While I am at all four with Mr. Mkindi's argument that compensation, as awarded in criminal cases, does not bar a person from filing a civil suit for damages suffered, which is why the Appellant instituted a civil case against the Respondent for damages. This ground stands dismissed for want of merit. Concerning the 3rd ground of appeal, the counsel faulted the decision of the trial court to award TZS 10, 000 as cost to the Appellant. He argues Page 10 of 13 that it is a general rule that a wining litigant as a matter of right must be awarded his costs, that costs are awarded at the discretion of the court, but discretion is judicial and must be exercised upon principles and not arbitrarily or capriciously. I could not agree more with this

legal proposition. Costs do follow the event yes, but I disagree that costs are automatic. After all costs are awarded subject to proof. Particularly on appeal, the Appellant was required to prove what he incurred in pursuing his case. Unfortunately, he did not. The trial court only awarded 7ZS 10,000 as a filing fee since it is the only viable costs as established through the receipt on the court file. If the Appellant claimed that apart from the filing fee, there were other costs that he had incurred in pursuing the case, he was supposed to prove the same. This ground too must fail. On the final ground, arguing that the first appellate court erred in upholding the decision of the trial court which failed to evaluate and consider evidence adduced by the Appellant. The counsel's contention was that the Respondent was charged and convicted of assaulting the Appellant and due to the said assault, the Appellant had sustained pain, suffering and emotional distress. As I have endeavored to explain above, the fact that the Respondent was convicted for assaulting the Appellant / Page 11 of 13 is not enough to guide the court to ascertain damages general or special, but particularly general damages. When it comes to specific damages it is even worse, as it is trite law that specific damages must be specifically pleaded and strictly proved. See the decision in Anicet Mugabe vs Zuberi

Augustino [1992] TLR 137. Going through the record there is no proof that the Appellant had proved his claim that the costs for the treatment he had received was TZS 200,000. The Appellant only testified that he used TZS 200,000 as costs of treatment at Mount Meru Hospital. The receipt he tendered which was admitted as exhibit B does not indicate that he used TZS 200,000 as cost for treatment at Mount Meru Hospital. The Appellant did not produce enough evidence to back up his claim so he cannot fault the courts below for not evaluating and considering the evidence which he himself did not produce. As I see it, this ground also fails for lack of merit. Having said so this Appeal is dismissed for want of merit. Considering the nature of this case, I order no costs. It is so ordered. DATED at ARUSHA this 07th day of June 2024 Page 12 of 13 A. Z. Bade Judge 07/06/2024 Judgment delivered in chambers at ARUSHA this 07th day of June 2024, before the parties / their representatives.

VUGH A. Z. Bade Judge 07/06/2024 Page 13 of 13