20180430 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) CIVIL APPEAL NO. 08 OF 2017 (Arising from the Resident Magistrate Court of Singida at Singida in Civil Case No. 7/2004) TANZANIA BREWERIES LTD . .......................................... APPELLANT VERSUS STANLEY PETER SHIRIMA ............................................. RESPONDENT (Administrator of the Estate of the Late Shirima Marandu) JUDGMENT 20/2 & 30/4/2018 HON. H. H. KALOMBOLA, J. TANZANIA BREWERIES LIMITED was aggrieved by the Judgment and decree of the Resident Magistrate's Court· of Singida ~--~jy.iL---------- case No. 7/2004. There are two grourigs_of.epp-eaf-=---------~------ -~- ---- ---------------------- . -----_L--fhat;--nie honorable Magistrate erred in law and fact In awarding the respondeni----0-stJm of TShs. 10,000,000/= and costs of the suit, while it is on record that loss of profit was not proved to the required standard. 1 2. That, the honorable trial Magistrate erred in fact and in law in allowing the costs of the suit to the respondent without reasonable justification. Hearing proceeded by written submissions. Appellant through the legal services of Mr. Ndanu advocate submitted on the 1st ground of appeal that it is now settled principle in our laws specific damages must be specifically pleaded and ~trictly proved as it was said in the case of BAMPRASS STAR SERVICE STATION LTD VRS. FATUMA MWALE TLR 2000 at page 390. It is submitted in regard to the Judgment of the trial court that the trial Magistrate admitted at page 5 of the Judgment in last paragraph that the respondent failed to prove he really suffered a loss of - - - - ---- ---~ - ~ TSh~_{,Q,_O_QQ,_QQ0L=__os_pJe.adedtclai-meE:f--iA- -t-he-plain-t~-,hat------- --- ---- despite the fact that the respondent failed to prove specific claim to the required standards, the trial Magistrate awarded him Shs. 10,000,000/= without any legal basis as it was found in the case of NMB HOLDING CORPORATION VS. HAl-{1SQ_N _fRA_SIO__MHECHE .TLR- - - - - -- - -- - -- - 2V02- arpages 77 and 78. - - In the premises it is submitted reasonableness cannot be the basis for awarding special damages as it was done by the trial Magistrate. --~--------- It is submitted on the 2nd ground of appeal that it is a general principle that awarding of costs is discretion of the court and the same must be exercised judiciously. 2 That in the present case, it is submitted the respondent failed to ovail before the trial court any customer who bought the contaminated beer to testify on the said beer. The respondent failed to take the alleged contaminated beers to the government chemistry for testing in order to get an expert opinion. Accordingly it is their submission in respect of the judgment that the respondent failed to prove on the alleged loss and declare in number of customers. Thus the respondent case was weak and baseless. In view of the above, they pray the appeal be allowed and the judgment and decree of the trial court be quashed and dismissed with costs. STANLEY PETER SHIRIMA (an Administrator of the Estate of the late Shirima Marandu) who is unrepresented, submitted in reply on --the___lsf -groonc::i- of--appeal-that--ev-en--i-f-th-e x_ecQrd_sll_ows- ~ -no special - - - ~ - -- - -- damage had been proved and pleaded but the appellant has duty to manufacture a product suitable and fit for human consumption and the appellant was in breach of that duty. It is his submission that the appellant has not denied the dirty beer and on the issue of liability of the manufacturer, he cited the case of DONOGHUE VRS STEVENSON 1932 AC 562. He insisted the Law of damages require a person who suffered foss or injury due to wrongful act of the defendant he is entitled to receive damages. 3 On the 2nd ground of appeal it is submitted that he suffered irreparable loss therefore the trial court was correct to award him sum of Shs. 10,000,000/=. He insisted the appeal has no merit it should be dismissed with costs. I have noted at page 5 and 6 of the Judgment where the trial Magistrate stated;- "As I understand the Law specific damages should be specifically pleaded and proved. But it is real unfair to discard loss on the ground that the same was not specifically pleaded where the acts - -- com-plained - off· us1JaUy ~ expel~ customers- whic-h indeed architecture or yield loss of both income and profit. Although there is no proof of statistics of declare of customers and profit this court awards the plaintiff TShs. Ten million and cost of the suit." The above quoted paragraph from the Judgment of the trial court supports the 1st ground of appeal that it is on the record that loss of profit was not proved to the required standard and the 2nd ground of appeal that the trial Magistrate allowed the costs of the suit to the respondent without reasonable justification. 4 Moreover on the same quoted paragraph, the trial Magistrate concedes that specific damages must be specifically pleaded but willfully decided to turn blind on this fact, so the award had no basis at all. I agree with the principle that specific damages must be specifically pleaded a:1d strictly proved and with what was held in the case of BAMPRASS STAR SERVICE STATION LIMITED VRS FATUMA MWALE TLR 2000 where the court said:- "...... special damages, being exceptional in their character, must not only be claimed specifically but also strictly proved." Having said so I allow the appeal, quashing the judgment and decree of the Resident Magistrates Court of Singida and set aside the orders arising therefrom. Appeal is allowed with costs. SGD H. H. KALOMBOLA JUDGE 30/4/2018 5 ,,_;. . Date: 30/4/2018 Coram: Hon. H. H. Kalombola, J. Appellant: Mr. Ndanu Emmanuel Advocate - present Respondent: Present C/C: ljinji Court: Judgment delivered today 30/4/2018 in the presence of Mr. Ndanu for the Appellant and the Respondent in person. f l1t H. H. KA(OMBOlA JUDGE 30/4/2018 6