20011120 TZHC Mwanza

c./ ~ . ~ G,U_ IN THE Hl'.GH COURT OF T:\ NZ.A. ND\

APPEIJATE JURISDICTION (Mwanza Re€:'istry) RtGH COURT CIVIL i'.PPE.\L ro. 4o OF 199, \. . . . (Fran the decision of the District Court of Mwanza -· District a"t MJanza in Civil C'.3.se l'bo 45 of 1995 · Before L.G•P• Magana, Esq., District Magistrate) TA :tlESCO LOOTED ~-•• .-••• • • • • o • • • • • • • • • • • • • • • o • APPEIJ:A Nr. VERSUS: MARY ROBERT •••••••••••••••••••·••••o·•••••• .. ~•: R,~SPOIDENT JUDGEMEN!' . . MRF.MA., .JUDGE . This appeal, ey TANESCO LIMITED, herein this judgement referrei. ".t: to as tp.e appellant, has stemined fran i::he decisio~_-or :judgement and decree of the district court of Mwan2a,. at M.vanza, · in respect ·bf . Civil Ca~ -rb. 45/1.995. The respondent is Mary Robert who ·had sued the appellant Cctnpe;I\Y for their. alleged negligenqe in the installation et a faiil.ty metre at the respondent* s hoUpe; and failure to test· the metre fran time to time as statutorily required+ And. as a conseque~ · .. the appellant caused· to the respondent n loss, which_ she categariz_ed. as speeial. damages, -in the s~ of T.Shs.7,529 1 86o/-.. The responq.ent."alao el4im~d. eanpensatior1t as general damages, in the sum of s~2 1 0CX) 1 a:,Q/~• . . After full hearing of ~he suit, the learned Distric~ Magistr.at~, Mr•. L.G.P. Magana, was satisfied that the respondent-plaintiff proved . her claim 6ri the balance ~f probabili tie$ and, therefore, he al.lowed

. the prayers in the plaint,. with a further order to the appellant-defemant . . to pay interest at canrilereia1 rat~ from the date of filing the suit to .. t:ae date of judgement,- plus costs of the suit in: favour of the respondent. Tt.i.s judgemE;?It and decree ._aggrieved the appellant .who Mught to challange the same by way of the present appeal.. . In the -district 2 court the appellant was represented by r-Vs Tanza>:lia Legal Corporation through the late Mutaitina, learned counsel and the respondent"."'Plaintiff was defended by Mr. Magongo, learned advocate. In this appeal, Mr. Alex Banturaki, l.e&rned.advocate of the Tanzania Legal Corpor~tion handled the appell.ant 1 s brief~ whereas Mr_, Muna, learned advocate, counselled for and on· behalf of the respondent., The .facts, ·as narrated_ at the trial court, _and which are undisputed,· are that on ~4/D/1992 the. respondent• s house, which situates on plot No..l9B a.t Capri Point 1 . caught fire. The fire brake out .near the bed room, but from outside, wherein th~-!espondent was sleeping and had kept some of her :unportant domestic items therein. it was at i:h20 P•ll)• when the i•ncideht occured. and the occupants ('If . . that -house had hot gone to bed~ The properties de.strayed were· listed dowh in a document that was annexed to the respondent's plaint and confirmad in evidence by _Mary Robert (PWl),.. The cost of each

item or property alleged tq ha-..re " _been destroyed by the fire was also indicated in the document marked 11 AU, and as confirmed by PWl in her testimony - 'vide Exh-.PeII., The major complaint was that Tanesco was negligent to instal a faulty metre and in the result electric current leaked out and spread int9 the.bed-room in which BrJ'l ~d kept electric items, e.g. TV, Co9ker 1 electric iron, refrigerator 1 loud speakers, among other things,_and· other house holds. Host of the electric items, according to PWl, h-'ld just. been_ brought by her fran Bbroad and she had not as yet removed them from their packc1.ges., . While the appellant Tanesco is not denying that fire broke in the house being occupied by the respondent and some properties damaged, however, it is the appellant's case that they wer0 not negligent as alleged by the respondent and as such they would not be responsible for the alleged loss or damage which resulted as the result of the ravaging 3 lfhe appe1lant• s defence was ·backed by the evidence ef Kilanzi• s. (IM1) ~ho testified ·to the effect .that the canpany' s employees in.spected ./ ~ \ ..... . . . ·. . the metre canplained of.. but they found it to have no fault at all. It • I . • was also the iappeilant• s · c:ase. that the respondent's act of using sane of the electric items; which were not subject of contractual agreement . without between the

parties,/·· . - notice or knowledge to the appellant amounted to breach 9f contract. On the ~ther band, the respondent, as per her answer to the appellant•·~ amended.Written: State...ment of ~fenc~ (see para 5 of. the R~p:cy thereto) 1 maintained that .the appellant's employees, under the super"IJlt.sion of one Kombo, did in fact discover the ·false mture nf one ef the gadgets in·the metre and replaced· the ~ame .. It was further contende.d that the electric house-hold_;items dama$ed by the fire were not in use by the respondent, nc,r were they connected tr. any electric socket to'receive electricity fran any electric wire fitted in that . , house and i,n that regard the a:ppellan:t canpauy was not entitied in 1.aw tcr raise defence of breach of Untraet,. ri.or rel:t on the rri~ ruJ..e of. lat.I ~ d~e~e. - ' Valent. l'ion · :t:i.t _bnju:rk.. meaning that 9 °That .to which a man f'.onsents cannot be c<>nsidered an injmy 1 - - See Os'hm-n 1 s Cenci~ Law Dict:l.onary1 Eighth Editio·n; page 344 ... It is al.i;;o ·gathered fron B,TJ. 1 s testimony, upon cross-exami~tion, that the house w?1ch got fire was a governme.nt quarter, which house was no doubt an old one. She ·therefore. disclaimed ~sponsibility1 or duty, to• inspect· the wires a.· as to ascertain their safety. She vehemently denied aey negl.i.gence on her part or any one occupying. the said house,. She vehemenUy de.nied

that the. fire was the ret5Ult of cigarrette smoking, nor ~ d a:ey other souree •Of fire other than electricity have eminated f"ran outside the house because. the windows were all secured with mosquito nets .a.nd grilled with iron bare. FWl also refuted aey proposition from the defence that the. i'ire eou1.cl have probably started fl"oin a ·misuse ef 4 an electric socket. This was because, shf' urged 1 the room which was . c t e d was not f 1'tt e d on 1't·s \,;a,~ a ffe .... .1..s, '•!J.c_, 'J."h any e 1 ec t r:.c . socn.t: . 1 - t• She further maintained that on the ma ter:5.al d3.to sl~~ ;,;::;_13 r:.ever using an. electric iron but a charcoal on_e ... The case for R\11 was further cemented by the te st:tmony of Julius Bulambu (FW2). This witness wa._, tne e,.rrp_;_oyee uf the then Mwanza Munieipality and his main occup<.Jtion was that of extinguishing fire fnvolving _risk of life and a.amage to property·., He confirmed to have· pa~~:i-cipated in putting off the fire which broke in F1Jl' s residential ½· ~Q~ee Julius also corroborated NP s testim:)n,Y relatin~ to the ~ama~ pro~el'i;ien.. According to Ri!2 1 ,such d2rnac;ed properties included mat~ese-Jt 'bags, beds, TV set, clothi.ng material.s ·c:1.nd other small itemsc As t(') what was the cause of the fire, B,-]2. emphatically stated, quoting his very 11 After we bad Ret the fire· off ( sic) we discovered that the ca.use

was the metre., It was D'\.,.i;side bed.:i.ng hoi.:.se ( sir.<' o L:s I k:news, the metre is the propert;y- of Tanesco11 o In cross-examination, J?l:J2 reiterated that notwithEtandin.s the fact that he is not an eJ_ectrician, his job1 however~ demands that he should poa:seetll rudmenta:ry knowledge concernin2: sources of fL-e break:tng incidents and hc,.,.r · they should fight the same., He -::..L:::;o cocfirmed t!'at most r-1f the pr~ortiee destroyed were in crates or box(:G., Robert A., H., .}heikh (H-13) ~ who i_s tJti, son of JW~, ctro~ly confirmed, corroborated the evidence of IWl and (>!' : -~ ~ PvJ2·, and further that he wA-s the one who. telepho:10d to the fire-qrigad;i t;' With regard t~ the defence case, Kilanzi Abdalkh (DW1), who ~as employed by Tanescn as gener:::t~_on ;:,-:;-:_Je:t~1:!:1tcr.dent manRger, at Mw~n~a, strongly refuted HJlt s claim trai.. she ever i'eported or complained abo-•t the fire incident to Tanesco., · ~'},at he never received any report f:17-,m· her, although he admitted receiving one fron the M.-1an,~ Police - - - - ~CID, which,. however was received on 17/0.5/l'JS,3, almost six months · iater after the incident., Despito such complaint 7 according tn IM]-, ... ' . " ....... .,. ........_ ,. . 5 - investigations were carried out by Tanesco and at the end of it a report was compiled and sent to the OCCID - - - - - referring to exhibit D2

.• According to DtJl, Tanesco upon receipt of such cases is bound to act on the spot, i.e. immediately after the fire incident, and not after lapse of time such as it was in this case. But the witness, however, admitted that he was not the one who investigated the matter. Referring to the contract between Pwl and Tanesco, I»ll maintained that Ta nesco would only be liable to the properties mentioned in the contract, which were a cooker and 6 bulbs. He further said that, in terms of the contract, the power supplied to l'Wl' s house· was enough, even a little bit more, to run -the electric equipment mentioned under the contract., In the present case, he claimed, Wl had not appli~d to have the contract changed so as to .1 , include, more electrd.c ,equipment; hence tM' nee'd ·for "Eanesco to ilicre"6e mtlre ·:electric power to that hou.se, or to bind her to the new contract.· J:t was the further testimony DtJl that Tanesco' s investigation ~me out ·with a ~egative finding to the effect that their metre at PWl1 s house I. w~s not defective but mechanically fit for the purpose it was intended, to wit; monitoring and recording the amount of electricity consummed by PW1 in that house. That it had no electric leakage, or any kin~ of eleptr,io which defect L ·would create short circuiting. On that account 1. !Nil, on b~ball Tanesco, refuted any responsibility to the fire incident and

the consequences caused by the eiectric fir~~ In his written submission; the learned advocate for the _appellantj Mr~ Alex Banturaki, contended that the claim is baseless because the caUJ3e of the fire at the respondent 1 s house is technically known. Further that there is no affirmative clarity as whether the fire .was caused by electric fault. Apart from the testimony of Rvl and PW3, according to Mr. Banturaki, there was no independent export who was .called to establish. the cause· of the fire., And in order to find the appellant liable for 6 . the damage allegedly caused by electric metre fault, the respondent was duty bound to call ·an expert to remove the doub'j:;. The iearned advocate · askeq. tlii.s ~our~ to dis~rd the evidence of Wf, that is, the officia.J. fire extinguisher man fr001 the then Mwanza Municipality,· because this l~tter person was not a qualified or recognised ·electric expert. Be that as it _may, Mro Banturaki contended, the metre was not found defective when it was inspected by Tanesco staff. Worse than . that, he asserted,. the :accident was never reported. to ~he appetl.ant 'l'jntil_ over five m,onths iater after the accident. In the result, he surmised, part of the evidence which would have. helped to establish the cause of the f~ · had been destroyed. In the abosence of this evidence·, ··it :i.s the appellant's counsel.1 s proposition that the

liability of the appellant was not proved on the legal required standard, which is on the balance of probabilities., Besides, Mr. Banturaki lamented,. the preperties.alleged to bave been destroyed by· fire we~ not seen or.witnessed _by the- appellant. Tbat the. court· ent~ely relied on the report sent to . the. police by the respondent and, therefore, there is no certainty of fairness because the number of items destroyed .could have been exa:,:gerated by the respondent. . . As to exhibit D2, 1t1hi.ch was produced by DtJl. on ·behalf of the ia.ppellant, this document, according to Mr. Banturaki,· exposes· domestic instailation in the respondentf s house, thus confirming that none of the installations was defectivee On the ba,-..,is of the evidence of D,,Jl. and the c·our>.sel I s contents of exhibit Dl, it is the appellantt szconclusion that there was· no electric fault ·in the. said Tanesco metre., That Tanesco 1 s inspection· •f 1he metre having negated ~ . the. respondent's complaint relating to the ,. defective metre case,. it remained a blame ·on the part of the respondent who sought the risk of using more electric appliances than was sanctioned under the contract between the parties. In conclusion,. it is Mr-•. Banturald.'s ,_proposition that, the appellant having maintained that the c~of the fire ,- 7 · di.d not emanate fran the alleged metre fault, it would foµ.oJ,

th,erefor-e 1 . tba t . the . .. reeyo!lderit . was exposing. her house . . ' to el.ect~ic fault, .by --~ing , electr_?:f equi.~ent and utensils not declared in .the document ·of agreement. betwee~ ·~he partie~. In .sum, he con~luded, the 1:4:pility of the app~llant was not proved and1 . ao such., the trial court erre~ in law and fact in . .. ~- ::~ ' . 9 . arriving at a wrong conclusion against the interests and rights of hi~ { I !. .. . . .• ; . • ,'! cllent.; and thus praying that the judgement and dec~e .of the l.o.-1er court be quashed and the decree/ order thereto be· set aside, with costs • . · Mr. Muna, l.earned advocate for the respoi;ident, did not sit 1.4e~ He c9untered, among other things that the assertion .that B:J2 was net a ~anpetent wf~ness to establish the cause of the -~re, is·. . ·. -~. - in ltj,.s v:i:ew, ,- a nakedly -unbeefe<:l up s~atement;. This. is becau~e, . according to Mr-.· . ~ ~~l¥l.t the witness (Pw,2) wa.s a· ·trained fire extinguisher whose knciw¼2d~ ,~·'exp~!e11ce was not only confined to putting off and c~ntrolllng breaking and spreading of fire. incidents but au;;o to' the. causes am.!. ... the~ ~vaging effects •. That the appellant never challenged PW2' s·· . t~s~~ny at 1h~ trial: in order to pr~ve hiin: to 'the contrary, in that ~ ·called ·oo· evidence· to challenge ·his .e~rtise in. detecti.ne souice ~of '1i.i:-e. In. the absen~~ of'.su~h

negation:; according to Mi'; ·Muw.; it·~ 1 ~ ~1 . ~ • .. . .·. - ~ . . . . . . .. .. . ... . .' r' .... .remained without s'.3-yipg that PW2 was a techrri.cal expertise not only~ 0 in fire exti~sbirig bu~, also i~ det~'cting sourc~~. ·of ~uch ~t~br~~s. ~f On • . that . premise, . ..... ~ it· is .. .,.., . . Mr.• Mut1:lt . i s ., .surmise that , bis :i.earned coll.eague '~ Mr. BaJ11.turald was wrong to suggest that the cause ' • .. '• • I of fire was n'?t technically known.. , r~···.,; The learned advocate for _-the· respondent also. discus~ed the • ·- · 'appe).l.ant' s purp.orted· inspection at the respondent's residential... . ~~ ~-. • • ,#. ~ . . . .~pr-emises. t · , It is Mr. Muna. 1 s• advice that v·· < • the court .· . should · be cautious · ·.to rely, on it. This is because·, he contended, the report was canpiJ..ed by.'.the··appellantl:.s ~n ·officials and as such they had ·their own, •interest· . to serve; . ni.at there is nothing . on record to ,showt or suggest •.~bat ·~his pieee ti testimony J!Y PW1 .was ever ·'corrobcrated _by ~ndependen~ ► ...- ~-· • - r 8 · testimony of a witness., As to the appell.ant's assertion that the report about the five- . incident w~s made a_vailable to the appellant more than five months Jater, instead. o:c. ~porting it quite. timeously~ am, therefore, J~~~- .>: ~illJtt',Uthf\Jltitt · . ''. · report, Mr. Muna bas a 'different 'view.

According ' ' to him, the learned advocate for the appellant should not read the Tam;lsco 1 s report in -~o1ation of the BtJ3' a testimony ( contained at page typed proceedings). This latter· witness. (:EW3) told th~ court 1.3 oi the .-~ ' -·'' ' .. ' that Tan~~co ·•f'f:;·tdaJ..s · visited the ill-fated house and confirmed that -the sours..e i,f the fire was the defective metre • . ~e counsel for the respondent wound up by saying that the responden~plaintiff . . proved her case. on the baJ.ance of proba.biJ...ities ., . . . and · 'in the upshot this appeal. be disn.issed in its entirety with costs to the · respon~ent. I have also ·taken the trouqle to go through the entire proce'ed:i.ngs contained in the District Court's· record. Among the issues raise9- by . · both the partie~ ( see page 7 of the typed proceedings). were whether: (1) the defendant had a du~ of care to the . ·· -. plaintiff (resp~ndent) j (2) Whether_· er. not the fire was caused by th~ defendant• a {appallf3,ntt s) negligence and or the fault in defendant's electric metre? It, is apparently clear from the proceedings that the learned trial· ' . li magistrat~ did not tackle the issues serially, nor isltnd~cated that he ever ta,.ekled them other than answering postively for the respondent- . - pl.a.in-tiff after ~viewing the evidence· on record ge·nerally. It would a~so · appear that thf? advocates did not give:

their views in connection with the issu~s ra:i.sed:• In this appeal· in a way, they ha~ attempte.d to cover them though indirectly. In_ this case I am parti-cularly concerned with the 1st limb ·of the ·question, which is whether the appellant owed a duty of care to the - 9 respondent? In answering that question the plaintiff .has to prove existence of a duty of care~ He shoul.d also prove thit such duty <'.ff care was breached by the defendant. And finally, whether such breach of duty of _care resulted to damage. In the instant proceedinri; it is :Q.ot disputed that the appellant (TaneBco) was the Su;pplt-er of electricity to the respondent. In the course of executing his duty to supply electricity_ to the respondent the·· respondent impllted .1 negligence on the part ,r the . appellant as follOdst- · (1) · installation of.faulty metre; (2) failure to test the metre fran time to time ae s t a t u . ~ requ:ired. With respect, it is unfortunate that both the learned advocates did not to . referLthe eleotr~city ordinance,. Cap.131,. whose provisions were e?'iaeted to -facilitate and regulate the generation1 transmission, di..strib'Ution •nd ' ' ,• use e,f el.ectricity ~n .the oowxtry. By virtue of' section 3 of the Or4inan<le1 . . the appellant. (Taneseo) has ·the monop•ly licence t f) supply ·el.eetrieity · · to. all the consumers _i~ the whole country. Also, Tanesco

(appellant)· · ~eing the excl.usive and/or licensee to supply electricity t'Q the 'Ta"nUl.OUS Consumers,. the Company, _under the a~tbority of .section 24 ... (i) et' the Ordinance,· has a. statutory "'bligation to instal a. metre ~n the premises · to which ele~icity is being .supplied. This statement could be better . explained by the citing .of the· relevant provision which reada as f o l + ~ •124 • ( 1) .The an ount ~f electric energy supplied br, .the licen■ee to any consumer, .'1" the maximum power demand in· any given period1 according to -fhe method by which the licensee electG to charge•••••••••••• shall be aseerta.ined by means of an appro- priate :metre or metres supplied, fixed. and_ · eo~ected with Gupply system by 1he. licensee. ;tn a manner p.rescr1bed11 • 10 And in order to ma:ke those metres secured, the supplier or.- licensee is s~tutorily required by section 24 (2) of the Ordin:i.nc~ to seal the metre with an approved seal. 11 bearing the licenseef s distinguished or mark impressed thereori 1 • That is not all. The suppliei;- is also -directed by the Ordinance, in terms of section 24 - (3), to further protect such metres or any- other apparatus belonging to Ta.nesco, by installing 151itaJ?~ut,,.outs •n the consumers" premises, which should also be protected by approved seals.• · The law further makes clear that the e1ectric supplier should be suitably equiped

with standard instrument _f~ testing a-nd calibrating metres.,· By use of the latter instrument · the licensee or supplier should take steps fran time· to t-.ime to test or have teqted the accuracy of the working standards by some recognized absolute method (section 22 is relevant here) • of In the inst.ant case there is no iota£evidenc.e on recorq. confirming whether or not Tanesco was· strictly canplying with the statutory r e q ~ ments ar_ obligations. The trial court was never told that Tanesco bad a mechanically suitable cut out fitted on the house of FWl and that the· same was in good serviceable condition on the material date of the fire incident in the ~se of IWl., Al.so the evident proceedings is devoid ~ material. evidence as whether Tanesco was fran time to time checking both the- metre and cut~ut in the house~premises of IWl and that· t~y. were maintaining records of the regular visits ·and tests of the instruments. Had there been such records· there would have been no doubt as whether there was a cut-out in the ):louse of Pwl and that both the cout-out and the metre were in good world.ng conditions - - - - as per the maintained records. The use of a cu~out is to turn off an electric current or break a t,ircuit. If M.' s house bad a good and suitably cut-oµt on the materia1 date of the "incident, one would then be entitled to querry why that cut- out did not turn

off the el~ctric energy due to the alleged faulty metre? Tn my view, the law does not create an obligation on the part of the ll consumers to ascertain from time to time as whether the Tancsco metres · a:rid cut-out~ are accurate· and world.ng efficiently under the required standards. It is the duty 01 the supplier of the electricity to do so. Now, .. if it is not-the duty 01 a customer to ensure that ml.Ch v:irtal electric instruments :are perfect¼' in good working condition on each day electricity is being supplied to his/ber house, _could it therefore re safely said in this case that iti ·the absence of records for inspecting -"the metre in PWl' s house, it was highly probably true · that the cause of f:ire in .Ptll' s house was defeetive metre? The answer to this question could only be ascertained fran the evidence-.· The defence ·case ·is. centralized on th/3 sole evidence. of ml ........... Katunzi Abda.ll.ah. His evidence was by and large useless. This is ~eeause his evidence was not tbat of a direct witness; for he _merely testified on it, let _aJ.one not a participant t~ the alleged investigation that was conducted in the hou.se of Ptll. He merely produced the detrome_n.t .'I:·~ ... -(Exh.D2). And to confirm in this judgement that he knew nothing about the alleged investigation1 the following text is. what he is on record as _ }ui,ri_ng told the triai court ih

cross4rxamination by the former ad~oate · (at the trial eourt) Mr~ Magongo: .. 11 0h my side my part was just • correspondence directly. r was not involved· in eve_cything in _this. ease". (sic)·. Clearly, pw:t' s testimony, in so far as e:xhibit Dll was eoncern&tt was he~~y evidence _because it was never corroborated by the author ~f. · ·the document, one Mr •. P.K.M. Kapile, the then Tariesco Regional Manager.- It was never also explained why he was neve! .ca-lled to testify on the contents of the said ~ocuments, including the b3.sis of such information. Even the contents of exhibit D2 do· not state as whether it was P.K.M. Kapile who visited _the scene to inspect the said ~tre. It was not a.lso explained wb:y- the person who earried out the. investigation was never called t~ testify so as to enable the Pl.aintiff1 through her advocate, to cross-examine h:i.rn/ber, on tbe--rrianner and d:rcumstances b.e -<:onducte.d - 12 the alleged investigation1 · and whether 1''11 or her independent witness wa~ p~rticip~ted in the investigation. All this necessary information was l.eft_ out _duri~ trial and in the absence of such important evidence, . . . a supplementary question would now arise as whether the Plaintiff successfully proved her case on the baJ.ance of probability? I think, in my conside~ed view, considering the evidence on record, ·. . . . the answer ·to _that_ question

would be _:i.n ;the affirmatiw. This is be~u.se• as :i: have pointed out above, the defence case is -too weak to equate it to the respondent 1: s case, in that exhibit D2, which is the only available evidence for defence, is bigh~sUSJ)ect and hearsay. It is suspect because· the document is in the first place not the original d·ocument. The, copies tpere6f which are sha,,n to have been forwarded to (1.) the ZonaJ. Director; _(-2) the mains' Engine~; (3) the Afisa Usalama, are indicated as riot on "N.o.o.ut meaning· itNot On the Original. 11 Why that was so, the defence never explained to the trial court,. Indeed., the .trial. court ought not to have admitted the secondary copy unless the witness explained·wby' the .original copy. could · not be produced? Were the contents of the origina.1. document the same .as those in the copies nNot on the OriginaJ: 11 · The answer to this question could only be answered by the author ·of that document and ih that regard, in my perceived view, it was not sa.f'e to rely on exhibit D2 because .neither the· trial court nor this appellate cOl':I't would knew what were 1he . contents of the original document. ," Under those_ circumstances, .in my vew, it goes without saying tba:t the court is left to refy on the sole evide.nce of the Plaintiff (Rvl.) and her witnesses,.· Even· if the contents of exhibit D2 were authentically proved, the· contents

thereof would still be viewed as being conjecturaJ. · hypothesis because of 1he fol.loning statement on item Dl. at pa·ge '2, . which states, quoting it verbatim ( only the relevant word$): 13 11 Tu.t.ia hisi kuwa vifaa eyote hivyo vilikuwa vinatumia umeme bila ushauri ~1etu kama mkataba wetu unavyosemt\19 ,. If there was physical inspection of PWl's house, as per DWl's testimony, the question that immediately follows is why such speculation? It is noted fran the respondent's case thnt th2 fire spread in only one r_oom before it was extinguished by fiie brigade.officialso The damage assets are on evidence that. they-were still· in their crates or boxes in the manner they were transported from a broad, and that they were all heaped in Wl.1 s. room ;_ which was the victim of fire., And 1 yet,. PvJ1. reiterated in cross-examination that there is no electric socket in that roan and as S11ch it was not possible for her to use any of those electric assets in that room. This piece of evidence stands unchallenged, despite the . . . . a~ged investigation carried out by the appellant's offic:Ials. · The author ~f ~- the purported . report (exhibit D2) went further to make a guess. report and it would suffice· if I repeat the ·very words fran the horse's· mouth,· which state:: as follows:- .• Shirl.ka 11 .-, ...._._ ..... llnaamini kuwa chanzo cha moto hald.kuwa .... ni umeme, k:,_.,a

kuwa. domestic installation ya ._ eyunba. hii ilikm-1a ni nzuri ~ isingeweza kusababi13!li3. moto wa umeme1'. ( underlined ·to emphasis the words inferring conjectural hyp9tbesis). The u~erlined words, n~ doubt, are an elt!pression of an idea or a ·. suggestion which is based on no confirmed fact or facts and in law the courts are precluded fran relying on such speculative statements. · The f:irst eited passage seems not to be in tandem with the latter cited passage I have just referred abovea T'ne former supposition appears to suggest that the ._~ppellantt s damaged electric articl;es were heing . . used and the ~ of the fire was overloading of t}1.e amount ··: :. of the ele.stric current that was being supplied t_l"I the house at the time.• _Bllt the second or latter proposition appears to negate 14 :the earlier statement to the effect that _the fire that b:roke out in the respondent• s house was not the result of electric fault 1 but of sane other· source.·. Why' should the appellant rely on unconfirmed hypothesis? · Even if it ~as· true. tha.t Tanesco came to know abrmt the incident through ltMkuu wa_ Upel;lezi Wilaya - Mt-.ranza 11 throµgh the _letter with Ref. No. · was MWIYCLD/B.1/l/.VO?--XXVl/671 d.ated 17/5/1993, w~r.i~hiL about 5 months after the incident, I \~ould not think that Tanesco would have viewed the .report .. . as being inse?l$itive or unimportant in such a

manner as they tended to. handle their case at the trial court. Indeed 1 in my considered view:, t1-y were required to carry_ out comp;:':ehensive investigation to establish that the outr-break of f~~- which C':lused damage. to the r~spondent's properties . . could not h?ve eminated fran the Tanesco 1 s metre installed st house prem¥es· of the respondent but fran some at her source· of which Tanesco had no duty or responsibility. But from their erld.ence on record it 1,oi.13 down to the bottan to infer -that the appellant rs officials or employees, after rece·iving the complaint or report from the police, · acted easualJty ·as if: nothing dangerous had happenedi . They ought to Mve taken the niattei" s~otlsl:1 iti vie\./ of the warrrl.tig mess.<Jge contain~d in the poll~ l.etter exhibit Dl 1 at para 3f which reads as foll&st• "K.atika kuiuatilia ·suala hili 1 yapo mashaka ·. . . kwamba huenda moto ulisab3.bishwa na moto wa umeme wa Tanesco ambao ulipata hitilafu l]3.. kusababisha ajali b.iyo11 ., Annexed_ to Exhibit nro_i 1 is a· certified copy of a short report (annexture '1C4.") made by 11 Mruu wa ICTTtJO CHA. Zil'1A.MOI'O MilAN'ZA.n relating to information made tv him by one_ MAMA. AV.iANI:, on 24/11/1992 at 14.,25 RBS, about fire break which ~~d in _the house No,.lS-B, at Capri Point,' whose tenant was Mary Robert,_· t® pl'Qsent respo~ent 0 The inforinaticm was

relayed through Telephone 3340. This annexture lfA" further 'reveals ha,, offioials of fire briga1l'e rushed to the scene at 14.26&.s and by 15.15 .the ravaging ·- .· 15 ,', .,. •fire was p:ut under control. It is als·o stated· in the report that the son of the owner of the house, one Robert, wa's injured by the burning fire when he was attempting to rescue sane of the im~ortailt house holds • or properties and that he was taken t'o Aghakan Hospital for treatment • Finally, the report points out sev0ral items, i~1cluding a refrigerator, a fl.at iron, etc, which were burnt or damaged by the· fire.· With all t.ha.t in±;ormation7 it would. ha.ve"be.en expected that, . .·.; ..:,. .. what..;_~pen~d to ,the_ JJ;'at'leSCd equipme~t ;_• :t:.e~ ·the ~met~e, -06Ut--out,, •and., • • O ' • •• .~ ;: : ~8,. • O • •'. • • • • :~ ; •• ~··:t . . ~~-·· • wh6ther they were_ ,repla-~d, or not repla ~ed, . aricf if':"replac~d 1:,y w.no? . - ' .. _ .. : ;c :..- , . . This·.important inf~~tion is lacking .in -the ca·se for the,·deJ~,nce (i..e.· ··- ·•.3.:..f.. ~ . . . ·-:· . : ... the ap~llant' s _qase) . . . .'. .... > . .. . It is imm~teriai vihether: ·or -·no~·'.:~h~ .f:µ;;e_-was .. the· : .........~;· . : :.-.. .. . . .. . . . . . . .. . .. -:result:· ;of elec:tr.is:,. fault, but the fact is that the·, fir.•E#' di•d. br-eak...qut and . .. ••' ',\: .;· : '-'}.i .... _,_. -~ . <;·. !

• u,,D;\p~.ope:tties daroage_d,_. _wh,i~h colD.d n~t be to the exausion of the :~ng : . ~ ~ . . ,. \1:rftli~f pa,r.t 9f th~ ~~~e ~rdch· ~-a~hi fir~.'·. Now, if the-.1&~: requ.ir.es _ . • .. . .. --·,: "i.·;, . J•-; ~;keEi8'6'to insp~ct . its met~e and cu:~·out 'froin'-;tit!ie to time, . , . _. . _::;-; ·.. .: r . ~id 1.:t-:m~~l'.l . ·;•· . ' .-tht:l.t from 24/.ll/1992 .(w~n the incident occured) up to ·20/5,/1993 the_,.. . . . ·~.• •... :;· ·~:r:.: '.: C. ... : • ".•'.t1ipl)ellani;:,Ai~ . not sen~ a metre inspector, or any other expert, ~-O· IWJ.i s ... :>hou.se ti,_-;a.~certain the electrical ·.'m-thnJss ~!' Tanesco equipment ;in,:~he 1 house? ..;·I_f they ..did not, then they were defihately'· negligent .in· the:Jr work. And if they did, they would have, for sure/ noted th/3.t ~1•s house .. .:: ,:.:_;_,_; caught fir~t··hence ·the'ir ·curiosity whether or not their equipment was '.• .. · . .. ~n the upshot, it is appa!'ently'.-that -th~ ~pPellant fai1ed -.to . . e.stab1ish ./'•·-· .; .. ·. .. on the rea~onable balance ·of prob?-bilit:f,.es . . that it . . .. . . was ., not their : ._., metre which . . was defectiv~ a'~-h~nce •it created. . no electric . short .. ··, er circut~' ~ o~ -~i~~nal:ii~'. and-highly. pro:t,able. evid~nce is that ~f FWl. fMary Robert) who ..told the' trial court that after UJENZI'. (Commoworks) bad repaired those damaged parts of the house under t~eir

duty to de· s6 1 Tanesco reported to the house after three days and restored the ·power which was off fran th,e date the .fire broke out.. But that no 16 sooner the electric power was restored than the power went off. Then . . the Tanesco officials confirmed to her that the problem was in the ·metre.: · ~e defective metre was then removed 0 Pif>l'2 (J-iµj_us Bulainba) of the ~e . . . -· . Brigade,· through his rudimentary knowledge relating to source of fire, corroborated I\t11 1 s testinJony that the cause of the fire was the metre that was defecti ~• B:J3, Robert A. oH• Sheikh, repeated what IWl and IW2 stated,· and I quote him verbatim ( in examination in chief):- HThe metre was fixed ·:.outside the house on the wall direct· to the bedroan. Up to this time the Tanesco members told us that short crune f:r'an the metro and they replaced i t 11 • S1nde, iri my vie\itt Tanecico always does its duties or works by mainta:i.~ng document. record~, it would have been common sense bn the. part of Ta.nesc• to lead evidence_, by way of docunentary evidence, to .disaprqve the · testimony of ·IWJ. and IW3. If the metre was never changed, it was easier for Tanesro to contradict such evidence because . the metre bills, or ca11 it anything relevant to that, would reflect the number of metre installed · in the house of the .canpJ.ainant., It was _riot the responsibility of_ PwJ. to prove that

the metre, which was found in the ·tt.~-:.use of Pdl when Tanesco expert ·went to that hotll:ie on 20/05/1993 to purportedly carrying out investigation concerning this ind.dent! infact or defective.. This ie because ?"Jie was not charged with the statutory duty, or even under the contract, to instaJ. a metre in the house, nor was. it her duty or. responsibility to carry out inspections on the metre to· ascertain their electrical and ·1. ~'., -. ·-. mechanical. effeciency._ I would therefore find· that there is· heavier evidence. on the · •part·of the respondent-plaintiff as what was the probable .cause ei the fire.' With respect, I would very much agree with Mr. Banturaki, learned· advocate for t1:le appellant that there ought to be an independent e~ert to establish the cause .of fire. But with respect, that proposition would be maintainable _it the respondent was required by statute or agreement o! ~- parties to be exclusively· responsible for not only installing ~'- . ~ : . . metre in the house sh.e was a tenant but also l.!t' ,., ~ l7 responsible to check it from time to time. ~J1 and her witnesses having asserted that the sour_ce of the fire was:ft'an the Tanesco's faulty m?tre•· · • _it the~fore remained the burden on the owner of the metre to dislodge· that proposition, but how, that would not the· burden on the respondent. I have also pointed out above that there is not

even evidence showi~ tha~ IWl was ever participated :i.n the aU.eged investigation by Tanesco . on 20/5/~993. I'br is there evidence by the appellant asserting that J:lWl was _ever· invited to call expert of her own to verify Ta-t;iesco• a findings • .. This latter point. could be illustrated bette:i:- by reference to the case of B.-A. MIN:?A ~- .M.-JAI'ANIBI TorAL SERVICE STATION, SHINlANJA AID TCYrAL ·(T.) LTD, (i972) ILIC.D, Noe24l, :i.n which it was state_d, inter aJ.;i.a, at ·page 319 as f oll01t1s: - 11 0n· the issue n01N · before me, lt · was for the plaintiff ·to show that the liquid sold to him. was th~ mirture ~e alleged it to be and ~i~e..._the mixture came_ out of the ptm1p of the . . -- .. ~trol _SE:,-g.on ~:f~ first defendant with liquid ,supplied by t!re second ·deEn,dant on _oo:SJ2_itality basis· fr~ anot]'ler company the · -~~den of proof is :g_p_on the defenda.nts to •· r.ebut the al~egat~• (emphasis supplied)-. 'rhe :learned ,Judge El~ndy .(as he. then was) werit further to, say; . nTbe mixture could only be there as a result o:r sane one's fault and. having found- that mixture came from the s_tated kerosene pump the plaintiff' discharged the burden of proof placed c,m. him and ~it.was for the defendants to sh0/1 that. the falflJ:. ·- was not the~11 · - underlined to stress the point. ·. In that case the Judge was satisfied that· 'A.Gither the first nor· the

21\d defendant led any evidence to show that the liquid from the kerosene pµinp was kerosene_ pureo With approval, applying this learned proposition to the present· circumstances . of. the . case, I· am satisfied ( . that the appellant . ' failed to discharge the burden cast· on the Compo.ny to prove that their metre in the house of P..Tl did not have any electric lea~age, or· fault 18 .... •n the material date when the fire accident occured in the house. of Wl,.. In GRAN!' v. AUSTRALTAN KNI:TTIID MILLS (1936) A..c. 85, per Lord Wright, also .cited in MIIDA. 1 s Case (Supra) 1 it was emphasised that, in negligent cases; the law imposes a duty to take reasonable care to aveit! acts or omissions which: one could .reasonably foresee would be likely to injure persons so closely and.dir~ctly affected that one ought reasonably . to nav-e them in contemplation... It should not also be forgotten that the nature of that <luty invariably varies9 according to the question whether or not the ·act involves a thit1g dangerous in itself. Also further th!lt liability does not depand on whether the defendants were manufacture~ or distributors or both but on whether· they had put themseJ.ves in direot relationship with the consumer. In the instant case there is no evidence that, nor has there bee.n any contention that the_ r~spondent was keeping dangerous explosive articles in her house, such as

kerosene, petrol or burning _things like cigarett~s, ete, ·which perhaps could be associated with the.fire tba.t broke out in the respondent's house.,. H~d there been such evidence I would be content myself shifting the liabiii ty to the. respondent ·sh-e- beeause of the duty of ectre L c,,;es to 1m.r· neighbours, or parties who cane within his· proximity.. For example in the ca.se of DOMIW:C'IN N\TURAL GAS LTD v. COLUNS AID. PERKIN:}, (l.909) A.C~l? 64o, at· P.646 L.ord DUN!IDIN said.:- 1'What that duty is will vary according to the subject matter of the things inv6lved. ~ It hast however, again and again been held that in the case of articles dangerous in themselves, such as ·loaded firearms,- poisons, e.xp1osives and other things ejusdem generis there is a peculiar duty to take precautions imposed upon those who send forth or install such articles when it is necessarily· the case that other parties will cane within the:ir pri:odinity. The d-uty being to take precautions• 19 . it is no excuse to say that the acci'dent would not lnve happened unless some other agency than that of the defendant had I • intermeddled with the matter •• ;.~1,,uc1.n The learned judge werrt ~n to say:- U.A. loaded gun will not. go off unless some one .. . pulls the trigg-er 1 o poison is innocuous unless saneone takes it, gas will not explode unless it is mixed with air and 1hen a light is set to •

it., On the other hand, if- the proximate .cause of the accident is not the neglj.gence of the . - defendant,· but the ~<?,~cious. act of another !£~ution2 then_~1ill not be liable. For againsj; such COIJ!3Cious act of volution no l're~a-q__tj.on can really availn ( emphasis supplied by me). A.pp~ng that learned view, to the present case, {here is no ev!d••oe tpt . . . the ftr~ which broke out in the respondent 1 ~ house wa~ inl~tl.t~d:... hr tq . . respondent• s negligent act to store· dangerous and. flamable articles 1n. 6o 111-fat~d hoU:se~ ·Adopting the words, with approval, of ·Judge a·1;able in·. WATSON V. BUCKIEY. AND <'THERS (l94o) I_ AIJ., EoR 1 · page 174 :Lt was therei11 11 T do ·not think that it matters whether the man 1.s a manufacturer or. ':,hether he is a distributor. ' It seems to me to be the same in tbe case of a person thr.ough whose hands there bas passed a camnodity which ultimately reached a consumer to his detrimerrt,. !Yhere the person has intent'io-= nally: si§? excluded interference with, · or exnminatio~ ·· · of 2 the article by ·the consumer, then he has, ('tf· his . a,m accord, ·brought himself into direct relationship with the consumer so as tp be responsible to the consumer for any injury the consumer may sustain as the result of the distributor's negligence. The duty is there~ In our ease Btll reiterated that Tanesco who had the exclusive duty

to c",.•ft the metre under discussion had never . been examining it. The resPQnde11t - 20 ... ·(M·t was barred fran any interference or examination of the metre. Under those circunstances one would be justified to ·•onc.lude that if · the appellant did not emit to inspect the metre :fran. t:ime to time tbe fire accident would not have occured and, therefore,. the appel.lant e ~ . . . '• . :· .. ...... . disclaim negligence, or breach of statutory duty. And it is ditficu.J.t .. in my. view, on the part ·of the appellant to disclaim negligence because there is nothing on reeord to show that there was th.ere was exterm!J. -interference by a third party (i4,e. !:_OVllS actus. itt;ervenien13; which the.· appel.l.ant could rely on). In the absence of such evidence I wow..d •ot, with respect to the appellant's .counsel Mr. Alex Banturaki, agree t~t the respondent should shoulder the consequences caused by the fire because she failed to engage an independent expert to prove that it was Tanesoo metre which was defective and that it was ·at ·that poin.t wu,-e· the fire eminated•. Ori this I rely on the hoiding of Biron,· Ag.c.J.~, · as he then was, indeed, with approval, . in the · case of· REHMTULIA BA r-MLI •• _ THE CC'MMISSIOl'ER OF TRANSPOR'r~ THE E:\ST AFRICAN.RA.lDJAYS l\Nb ~~~ .·; • . I • • • ; :· ADM!NISTR\TION d.9&:;) Heh♦ No~293,. at page 26:q ·. whkl'~ih li .w!ii~ _01'se11w~ ·

inter al.ia, ( quoting verbatim):- 1'Without indulging in an academic exercise as to how fires can and do break . out on . such . premises, .there must be positively established negligence .on bis part •·• • • • • o.... 0n· this · question of negligence, the station master stated that the two drums of petr~1 were-kept in the store under a file of about 50 coffee bags, each weighing about 200-300 lbs. I have not the slightest hesita.tion in finding· that the store two - 44 gallon drums of petrol. constitutes neglig-ence. Further, it also constitu~es a. bl'each of statutory duty, in that it violates· rule 28 of the Petrol.eum E,_ules, made under the Petroleum. 0rdirance Cap. 222 - ~Upp b]-) ••••o•••o~oo•••••• Be that as it may, it is. abundant~ clear that 21 the ont ··break.. cr.f-the· fire was. not due .to ·· the petrol druns stored on the premises. The Administra'tion, therefore, cannot 1:)e held liable ·for -the out-break of the fire . . . . . . . . . . . ,. o,. ,; • ~ o o. ' 1underlined by me to produce ... The significanqe of tbat guidin,:; V:l.BW is that linb:ility for breaeh er a. statutory duty is .not, as a rule, dependent on proof of nogllgenee. If . _for ins'tance, it is a 1statut_ory duty t:o maintain a B.ft in a story tt~4~ · it is not a question of a wish or _discretion but an c:ibsolute_ obligatioil to do th.Q.t see MORT0N GIASHIELS GAS CO. Vs,. V'DONNEL tJ.94'17

A.c.· 275 - - - - - with reference to the British GQctories Act, 1.937, ss.22 {\) and 152 ·(2),. Also 1 a 9 it was stated in C(\RROL v~ BI\.RCIAY (ANDRILW) Ii.Ni SONS, IIT'D {_[94§7_ A.,.C.,; . 474 1 where at pnge_ 4s;7 Lord· l\brimanda reitera~tj · that it' is an vlabsolute ebligation to fence dangerous machinery.'' On_.tll:t ·· strength< of these English· autlmcitiesf though pursuasiv~ ·as they are. I am inclined to -the v.tew th..-=i.t where_ an Act requires something to be done without qualification, contravention of ·the s-catute autanaticalJ.y establishes liabilitye . RuJ.e 44 - (1) of the KJ¥ctrlc Rules, J.961 1. as per the Ooverineid: flbtice No.J95/19.61., makes it ~'?-ndatory to h'3ve all electric wires1 . ' \ fittings and apparatus· on a conslm.1~:·:c·' :) , premises, except_ :such pari:3 ae required to be earthed, highly insulated far the vol~ge at which the supply is given.. Further, that. they shall be thoroughly protected · against. injttr-y to the installation or access cf moisture.. It ie . needle.ss to emphasise that the appellant did net lead eyidence t~ prove that they did not breach any of the statutory duty e:ir obligatio11 J created ~gainst them (Tanesco) by the Electricity Ordinance or the nules made thereunder., ~/ In sum, I am satisfied on the ~videµ~e ·a:nd the auth.OP-itiee 'I have cited above~ that the responde.nt-p1aintiff through :EW2 and

~3 successfully proved-·her -ca:se-- on the balance of probabi1itiet that the J 22. appellant was negligent to prope.1y and safely n:,.aintain its electrical apparatus, to wit, the metre, installed in FNl' s house and in the result it caused electric leakage and thereby resulted to fire spreading to P.vl:•s room and caused extensive damage to FWl' s property. Accordingly I ~nfirm. the ·findings of the trial district court, although the learned District Magistrate. did not consider the e11se as. el.a.boratcly as it. has been done here. .. , Before I wind up the matter, I think it is also rriy duty to ·consider whether or not the damages awarded by the trial court w_ere reasonably commensurate ·t_o the loss or injury incurred., It is a common ·ru1e. of law that the only ktnd of damage for wh·',ch compensation is recoverable is that which ari:;;es naturally and in the usual course of things from the defendant's acts ___;.. see the case of HADIEY Vo EAXEIDAIE · (1854) 9 E~31 +1-. In the present case the resi:iondent pleaded. and sought two kinds _of relief: (1) Special and (2) General .damages. I· have no· problem with the item on special damageso This -is because in tort, the normal measure of damages is its value at the time and place of t be destruction~· If I woul_d be permitted, which I believe I'm, I have some persuasive guidance f:rom. an English authority, namely.

LIE,$BOSCH v. S S EDISON 1J.9y?7 A.Cf 449, wherein it was stated that nrn princip1e the plaintiff. is entitled to suc.11 sums or' money as would enable him to _. purchase a. replacement a·t the prices prevailing at· the. date of _destruction'• . And in LLYDE mVIGATION TRUSTEES v. OOfORIN1 (1929) 34, LI'."R-. 319 1 it was reiterated tP~t where no market exists in which such prices can be ascertained, the tendency is to iook to the replacement costs,. -I have gone through the docu."Tient on which the destroyed items were listed down and nga.inst each item· its value or price (in monetary . calculation) is indicated& The total value of the articles shown to have been destroyed by the said fire is shs.7 t.529,8€:o/-o The defence never challeged against he said destruc~ion of the listed down articles ... 23 nor their value thereof. I have noted -that sane receipts, especiall:y in respect of the new art:t~s imported fran a:broad, including way bills atid customs cl~arance. were produced. In this appeal the appellant- . . defendant did hot also raise any question relating to the awarded _eanpen- sation or damages. On my part, w.ith respe_ct, I can find no legitimate basis .upon which I could dif;fer .-lith th0 respondent and _the trial court. 0 . . And ~s such I confirm the award of shs,.7,529,660/00 awarded by the district court and as per the prayer in t_he amended plaint. As

regards the general damages in the sum cif shs,.2.1000 1 (XX)/-, . . . . . . . . . . . . . . . . . I am mindful. of· the fact that the respondent-plaintiff did not only. incur costs to buy·new.items to replace thosedM!ages by the fire 1 but also she was deprived of the use of those items for a period of time· arid on that loss, I have no dr.-ul>t.!·· ··. the law of equity would lie at ·her door ready to redress her.,· On this latter proposition .I am guided by the iearned view expressed in MA.:CRl\E v. SWIIDELLS tf..95'jf l WoL..R ':TJ7 wherein it w4S observed,· among ot~r things, to the following effect:- "There is no reason, therefore; ·why a . person whose motor-ear is damaged by the negligence of the defendant should. not recover damages for loss of use, even though he uses his car for pleasure purposes and. ·has a second car in h_is garage 11 ~ But_, in my view, it would be a differf'.nt case if the loss is due not tt'i the· defendcint1: s tort bl.t to some extraneous c~u.se.- In CARSIOOIE STEAMSHIP Co.Ltd V. ROYAL NC'™EGL'\.N GOVERJ\MEN.r (J..95?} A.Ce 292, it was emphasised tb;it if dnmag.es for los_s of use :Jre proved to the· satisfaction of the court th:1t the· ioss was not due · to the defendant• s otrtious negligence," but to some ~xtraneous cnuse, the court ·s_hauld not awar<:l such dM1age1:1 against the defendant. With approval, applying this ~ound

·proposition· to the case b~f?re rne 1 the· tortious act fairly fell against the appellant who was negligent to perform his st-':itutory obligation from time to time ......... 24 and- consequent:cy- fire broke .out fran the apPellant' s defective metre~ I am satisfied, as did the tria~ c:ourt1 that the .:Pe~po-~ent ·was,- or is perfectly entitled to be compensated for general damages in view of _the loss or. injll!'y suffered by her~. In rq considered view, the award :·of· shs., 2~0CIJ,_(XJJ/- as general. damages could riot be said to be unre~sonable or on· the higher· side,~ especially_ putti~ into view the . . inflationary .spiral. in the country affecting the value· of . the s~lling :vi&-a-.vis · the· Ame11.can doll.or, or the o:ther str~>ng global currencies._ In the upshot,.. I. contlrm the aw;rd. of sbs•.2,000,000/- as ge~eta.1:. , damages granted_ by the district court. In the result; . this ~ppea1 is 0 ti dismistjed with costs~: ·. V A.i. c. MREMI\ 20/ll/2001 JUDGE At Mwa~, ·1-n. the presence of Mr •. Banturaki, learned counsel for the· appellant and .Mr. MUJl3. 1 · learned counsel for the respondent. ·JUDGE 20/1.1./2001.