20190524 TZHC Dar es Salaam

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA {DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 243 OF 2017 (Originating from Civil Case No. 19 of 2012 in the District Court of I/ala at Samora A venue) TANZANIA ELECTRIC SUPPLY COMPANY LTD ........................... APPELLANT VERSUS RWEBARINGIRA EUSTACE & CO. ADVOCATES & ANOTHER ..... RESPONDENT JUDGMENT Date oflast Order: 20/3/2019 Date orJudgment:24/5/2019 MLYAMBINA, J. Before the trial Court of Ilala at Samora Avenue, after full inter partes hearing of the suit, the appellant herein was condemned to pay the first Plaintiff herein as follows: i. TZs 300,000/= per day from 26th January, 2012 to 12th February, 2012 as special damages. ii. General damages at the tune of TZs 26,000,000/= iii. Interest on (i)-(ii) above at a rate of 18% from the date of filling the suit to the date of judgment. iv. Payment of interest on the decretal sum from the date of judgment to the date of full payment. 1 The Appellant being dissatisfied with the above Judgment and Decree dated 09th May, 2016 appealed to this Court against the said Judgment and Decree on the following grounds: 1. That, the Trial Magistrate erred in law and fact by not take into consideration if there was a pending case between the Defendant and the Land Lord (Workers Development Corporation). 2. That, the Trial Magistrate erred in law and fact by not taking into consideration about the fact that the changes of the Conversional Meter to LUKU meter was done illegally. 3. That, the Trial Magistrate erred in law and fact by holding that the Respondent had paid the final Bill in respect to his conversional meter No. 11789917. 4. That, the Trial Magistrate erred in fact and law by awarding the Respondent reliefs not claimed. 5. That, the Trial Magistrate erred in law and in fact in completely failing to examine and evaluate the evidence on record and hence arriving at a wrong decision and the reliefs granted. 6. That, the Trial Magistrate erred in law and fact in awarding the Respondent Tshs. 300,000/= per day for outsourcing their Secretarial Services and at the same time awarding Tshs. 26,000,000/= being 3% of drafting a Purchase Agreement. WHEREFORE, the Appellant prayed for the orders: 2 a) That, all the proceedings, decision and orders of the District Court be quashed and set aside. b) This appeal be allowed. c) Costs of this appeal be borne by Respondents. d) Any other relief(s) this honourable Court may deem just and equitable to grant. The appeal was disposed by way of written submissions at the consent of both parties. In reply submissions, however, the respondent raised some legal points to be considered prior addressing the appeal grounds. The first legal point is on time limitation of the appeal. The respondent submitted that the judgment which is challenged by the Appellant was delivered on 09th May, 2016. The memorandum of appeal was filed on 22 nd October, 2018 this is a period of more than 29 months from the date of judgment. The respondent stated that there was in this court application for extension of time in Misc. Civil Application No. 798 of 2016 between TANESCO v. Rwebangira Eustace & Co. Advocates, Jounalist Environment Association and Steel & General Ltd. The ruling was delivered on 12th October, 2018 before Hon. Munisi, J. The parties in that case (Misc. Civil Application No. 798 of 2016 were between TANESCO v. Rwebangira Eustace & Co. Advocates, Jounalist Environment Association and Steel & General Ltd, and the case at hand are deferent and therefore it cannot be said that the extension 3 of time granted to TANESCO was granted to Tanzania Electric Supply Company Limited. It was therefore the respondent's submission that the appeal is incompetent before the court and it be dismissed for being filed out of time. The second point was that the Plaint attached to the submission be expunged. According to the respondent, written submission is not supposed to contain evidence but only legal and factual arguments. To bolster up his submission the respondent cited the case of VETA v. Ghana Building Contractors Ltd, Civil Case Number 198 of 1995, in which Hon. Kyando, J (as he then was) held as follows: ...I wish in conclusion to comment on the matter ofprocedure and practice, Mr. Kayage has attached the annexture to the written submission. I don't know what purpose are they supposed to serve, are they intended to be evidence or exhibit to the application? if so, they should have been annexed to the plaint or counter affidavit exhibits cannot be attached to the written submissions. Submission are supposed to be elaborations or explanations to the evidence tendered. They cannot themselves be termed as evidence, I reject therefore the annextures annexed to the submission by Mr. Kayage, I direct that they be turned to him... 4 It was the humble submission of the respondent that the attached plaint be expunged. On the date set for mention to fix judgment date, the appellant never appeared to apply for filling rejoinder out of the schedule. So, the objection remained uncontested. However, this Court as a fountain of justice, I find no merits on the first legal objection. It is true application for extension of time in Misc. Civil Application No. 798 of 2016 was between TANESCO v. Rwebangira Eustace & Co. Advocates, Jounalist Environment Association and Steel & General Ltd. It is also true that the appellant herein is Tanzania Electric Supply Company Limited. In my understanding and the general public understanding TANESCO is the acronym of TANZANIA ELECTRIC SUPPLY COMPANY LIMITED. Therefore, it cannot be said to be a different person. Even if were different, the ad idem of the parties in the said application for extension had meant to be referring to the same person. As such, the objection of the respondent remains a mere technicality which do not add any value in dispensation of justice in this matter. The second objection is material. I need not add anything from the findings of my brother Kyando, J (as he then was) in the cited case of VETA. The attached plaint and annextures are therefore expunged from the submissions. Needless such findings, the expunging of the Plaint to the written submissions do not change the day to be a night. This been 5 an appeal, this Court while scrutinizing merits of the appeal cannot avoid going through the same document in the record of the trial Court. With these findings, I will now turn to consider the appeal on merits. Arguing the 2nd and 3rd grounds of Appeal, the appellant stated that during the trial of Civil Case No. 19/2012, the Defense witness (DW1) one James Aron Mbeleka categorically stated that the policy of the Appellant when it is requested by its clients to change a Conventional Meter to a LUKU Meter, the main condition imposed to the client is to submit two last payment bills. At page 6 of the judgment being challenged, PW1 one Eustace Rwebangira testified under oath that he paid all the postpaid conventional meter bills and tendered Exhibit Pl collectively which was admitted by the trial court. Exhibit Pl collectively has four documents, the 1st Plaintiff tendered in an attempt to prove that all the prepaid bills for the conventional meter were paid. The document referred to is a Tax Invoice dated 03/02/2010. This is a bill of the month of January, 2010 and then if one looks at the said Invoice, the meter reading was done on the 05/01/2010. The above being the case, the 1st Plaintiff before being installed with the LUKU Meter he had to produce the receipts manifesting the payments of January and February 2010 respectively, and further to that LUKU Tax Invoices beginning March, 2010 but to great dismay the 6 1st Plaintiff in Exhibit Pl he has annexed LUKU Tax Invoices beginning April and May, 2011 and January, 2012. It was the submission of the appellant that the Respondent did not change the LUKU meter legally and neither did he pay for the final bill in respect to conversional meter No. 11789917. In reply the respondent stated that the mere act of the appellant of submitting that the prepaid matter (namely LUKU) was illegally obtained by the 1st Respondent is point of self-defeating by the Appellant. It was the reply submission that in record there are evidence of PW1 that the firm entered into agreement with the Appellant and paid all requisites and he was issued with electric services as a customer. During the trial the Appellant did not dispute that RWEBANGIRA EUSTACE & CO. ADVOCATE is their client the Appellant did not dispute that is the one who issued exhibit Pl. The respondent questioned, if at all the appellant had knowledge that the service was illegally obtained how did they continue to offer the services? The respondent went on to submit that, on the appellant's evidence through DW1 it was stated that the electricity was cut off because the building which the 1st Respondent is occupying had failed to settle its electricity arrears. This is also another point of loss. The Land Lord; Workers Development Corporation (T) Ltd (WDC OR OTTU) is not Rwebangira Eustace & Co. Advocate each is responsible to 7 their respective capacity, Rwebangira Eustace & Co. Advocate could not be punished at the expenses of the Land Lord who also had her own and separate electricity meter. It was therefore the respondent's submission that the allegation that the meter was illegally obtained is an afterthought, because looking at the pleadings and testimony of the witness DWl, the aim for disconnection of electricity was not on the ground of obtaining meter illegally but for the reasons that 1st Respondent had failed to settle his electricity bill. It was a duty of the Appellant to prove that the 1st Respondent had electrical bill arrears which he had failed to pay, as the Appellant had failed to prove that, then the District Court properly decided that the disconnection was unlawful. In the view of the foregoing submissions, I do agree with the respondent that the 2nd and 3rd grounds of appeal are devoid of merits. There is nothing in record for this court to reliably conclude that the respondent had illegal connection of electricity in its office premises. If that was a point of disconnection, the evidence of the appellant herein should have reflected so in the trial records. To the contrary, as properly stated by the respondent, the source of cutting electricity was electrical bill arrears of another person. It was not an arrears of the 1st respondent herein. It is a general principle of law that one cannot be punished for the wrongs of another person. 8 Indeed, it is not disputed that the 1st respondent's landlord had its own look meter separate from that of the 1st respondent. So, there was no need to cut electricity for the whole building. The appellant's ill act of disconnecting electricity to its innocent client was not only illegal but denied services of other innocent clients of the 1st respondent herein. It was not disputed that the 1st respondent is the client of the Appellant. The record is also silent on whether exhibit Pl was not issued by the appellant to the 1st respondent. As questioned by the 1st respondent, if at all the appellant had knowledge that the service was illegally obtained, in my view, it could not continue to offer the services. It suffices to find that the 1st respondent was a legal client of the appellant with all entitlement of the best and reliable electricity services. On the 3rd , 4th 5th and 6th grounds of appeal, the appellant submitted that the 1st Plaintiff has prayed for Tshs. 300,000/= per day as Special Damages for outsourcing the secretarial services under paragraph 14 (a) and also under the paragraph in the Plaint, prayed for reliefs claimed for Judgment and Decree. Thus, the trial Court granted the same without the 1st Plaintiff adducing any receipts proving payment of the alleged Secretarial Service. The 1st Plaintiff also under paragraph 14 (d) of the Plaint, prayed for Special Damages to the tune of Tshs. 26,000,000/= on allegations that due to power supply being disconnected at their offices they could not prepare a Sale Agreement, in respect to a sale transaction between 9 their client one Modest Joseph Temba. The appellant asserted that, if one goes through all the reliefs the Plaintiffs are claiming it is not manifested anywhere the 1st Plaintiff is claiming Tshs. 26,000,000/= either as General Damages or as Special Damages. It was the appellant's humble submission that the trial Magistrate did not evaluate properly the evidence before the Court because if she had done so, she could not have granted the Special Damages of Tshs. 300 ,000/ = per day for payment of Secretarial Service without proof of payment by receipts proving the same. And further to that under paragraph 14 (d) the 1st Plaintiff claimed Tshs. 26,000,000/= as Special Damages, for failure of preparing a Sale Agreement for their client one Modest Joseph Temba, had the trial Magistrate evaluated the evidence well before her she could not have gone ahead and granted the 1st Plaintiff Tshs. 26,000,000/= as General Damages whilst the 1st Plaintiff had prayed for Special Damages and not evaluating the evidence well before the court, hence by doing so she granted the 1st Plaintiff a relief which was not prayed for and hence arriving at a wrong decision. On the 6th ground of appeal, the appellant did submit that the 1st Plaintiff claimed under paragraph 14 (a) and under what reliefs the Plaintiffs are praying for Judgment and Decree, Tshs. 300,000/= per day as Special Damages from the 26th January, 2012 until the date of power restoration. 10 The trial Magistrate in her Judgment granted the said Tshs. 300,000/= per day as Special Damages, and at the same time has granted Tshs. 26,000,000/= which was prayed for by the 1st Plaintiff as Special Damages under paragraph 14 (d) of the Plaint, and the Trial Magistrate granted the same as General Damages a relief which had not been prayed for by the 1st Plaintiff. It is our submission if a tall the 1st Plaintiff was contracted to prepare a Sale Agreement he should have done the same through the out sourced Secretarial Services. It was the further appellant's submission that the trial court could not have granted for job not done Tshs. 26,000,000/= the said trial court it at all saw it judicious to grant any General Damages the same should have been assessed. Thus, the trial court erred in law and fact in awarding the Respondent Tshs. 300,000/= per day for secretarial services and at the same time awarding Tshs. 26,000,000/= being 3% fees of drafting a Purchase Agreement. In response to the 4th , 5th and 6th grounds, the respondent stated that the decision of the District Court was based on facts and evidence adduced in court. The court had an opportunity of listening to the parties and their witnesses and finally arrived at a firm decision which considered all scenarios. As regard to the grant of Tshs. 300 ,000/ = as special damages, the same was specifically pleaded and specifically proved as required by 11 the law. The argument that no any document was produced for that respect is misplaced. Rwebangira Eustace & Co. Advocate is legal firm which her work at 75% depend on paper works, being a firm, as it is stated in the pleadings and oral evidence the claims were proved to the balance of probability hence the amount granted is justifiable. As regard to the grant of General Damages, it was the reply submission that general damages are the amount awarded by the court on its discretion. The claim of Tshs. 26,000,000/= that are stated under paragraph 14 ( d) of the plaint talks about the loss which the 1st Respondent got for failure to attend his client. It was also the discretion of the court to look at the matter and make a decision. The trial Court at its decision did not make any order to the contents of paragraph 14 (d) and instead worked on paragraph 5 and prayer/relief (e) of the plaint which call for the court to look at the matter and award general damages on its discretion. The respondent asserted inter alia that special damages need to be specifically pleaded and specifically proved but general damages merely need to be pleaded and proved. To back up the argument, the respondent referred us to the case of Edwin William Msheto v. Managing Director of Arusha International Conference Centre (1999) TLR 30 at page 140 paragraph 3 Hon. Kisanga, J (as he then was held as follows: 12 . The Plaintiff also claim damages for defection by the Defendant, he claims Tshs. 50 Million. As rightly pointed by Mr. Makange/ this class of damages is of general type as distinguished from special damage~ it is wrong pleading to put a specific amount in claim for general damages/ the quantum for general damages where awardable is assessed by the court In winding up his reply, the respondent stated that the grounds of appeal by the Appellant are whole based on fact and in their submission, the Appellant is challenging the findings of the court. In a situation like this the court normally the takes the caution of not disturbing the finding of the trial court which had an opportunity of examining the witness. On that point, the respondent reminded the court on the decision of this court (Hon. Wambura, J) in the case of George Imail Kalalu v. George Martin Nachenga, Misc. Land Case Appeal No. 109 of 2015 in which she held that where the appeal is whole based on facts, the findings of the trial court should not be disturbed as the said trial court had an opportunity of seeing the demeanor of the witnesses. In the light of the above submissions, I find a good point on the respondent in that it was proper for the trial Court to grant general Damages to the tune of Tshs. 26,000,000/= on allegations that due to power supply being disconnected at their offices they could not prepare a Sale Agreement. The evidence on such loss of income as testified by 13 \I PW1 was corroborated by PW2. The reason is that, the award of Tshs. 300,000/= per day for secretarial services was specifically proved by the claimant. It can therefore not be regarded as double punishment to the appellant. In the end result, I dismiss the appeal with costs for lack of merits. 24/05/2019 Dated and delivered this 24th day of May, 2019 in the presence of learned Counsels Diana Mahatane for the Appellant and Thomas Brashi for the 1st Respondent. 24/05/2019 14