tanzania saruji corporation vs african mable company limited 2003 tzca 18 28 january 2003

IN THE COURT OF APPEAL OF TANZANIA AT _DA1: bAJJJ&i ( CORAH : LUGAKBIGIHA,. J _ . A . M R O SO , J.A. , And HUNiJO, J .A .) CIVIL APPEAL. NO. 5 OF 199? BE:J.vvijEN TANZANIA SARUJI CORPORATION. . . . , APPELLANT AND AFRICAN MARBLE COMPANY LIMITED. . . RESPONDENT (Appeal from the Judgment and Decree of the High Court o f Tanzania at Dar es Salaam) (K a j i UjJ .) dated 11th October, 1996 in CjLvil Case No^ 8.9.. o f 15.8? O . ilil IL ^ L E LUGAKINGIRA, J .A .: In C i v i l Appeal No. 38 o f 1993i th is Court d irected the High Court a t Dar es Salaam to assess general damages a ris in g from the a p p ella n ts' act o f detaining the respondents’ machinery since ^.3.87. The d irection followed a successful appeal by the respondents against the decision o f the High Court (Mkude, J .) as i t re la te d to damages. The High Court appointed the Government C h ief Valuer who valued ths machinery on 27.11*95 and presented his report on 3 1 * 9 6 which showed a depreciation o f £hs. 6 , 770, 988. 7 5 , being the d ifferen ce between the machinery's current replacement cost and the depreciated replacement co st. The High Court (Ka.ji, J s) next d irected the respondents to submit in w ritin g on general damages, which they did and came up with a t o t a l claim o f Shs. 150,760,260.20» The claim was re s is te d in part by the appellants in re p ly , but the learned judge approved i t as presented and th is appeal is against the award. I t is contended gen era lly that the judge was unable to • • •/ 2 2 d istin gu ish between special and general damages and that the award consisted su b sta n tia lly o f the former. We w i l l clea r up one small matter before proceeding fu rth er. The va lu e r's report was acted upon without it s being admitted in evidence. In his ruling, t i t l e d •Assessment o f General Damages," K a ji, J . stated that his task was to assess the damages but not to hear the su it do novo. That is true, but taking o f a d d itio n a l evidence, which the va lu er’ s report was, involves a t r i a l . The judge should th erefore have held a t r i a l on the issue o f general damages and fori:’, a lly received the v a lu e r's report and any other evidence in that regard. We have pondered on the im plications o f the ir r e g u la r it y but we do not consider i t o f much, i f any, moment. Counsel on both sides did not appear exorcised by i t , r ig h t ly , in our view, since n either the merits o f the impugned decision nor the ju ris d ic tio n o f the High Court was a ffe c te d thereby. The case is covered by Kule 108 o f the Court o f Appual Buies and we w i l l proceed to the m erits o f the appeal. The question is whether K a ji, J . d irected h iu s e lf c o rr e c tly in assessing general damages. His award comprised o f the fo llow in g items as presented by the respondents: A,1 Cost o f in te re s t on the basic cost o f the machinery at % p .a . from *1.5.87 to 30.6,96: S hs.117,168,200.00; b r2 Cost o f in te re s t on customs duty at 12& p .a . fo r the same period: Chs. 670,22^.00; ^.3 Prepaid tra in in g o f s t a f f in the .../3 US plus in te re s t thoreon at $$> p .a . fo r the sane period: Shs *12,858,395*005 k ,k Prepaid tra in in g o f s t a f f in Tanzania plus in te re s t thereon at p»a* fo r the saniu period: She. "12,510,327*00; 1+.5 Diminution in narkut value o f machinery from 4*3.37 to 3 1 . 1 *96: chs, 6,770,928.75; and in te rest thereon at 9^ p.a* from 1*2.96 to 30.6*96: Shs* 253,911.00 - t o t a l &hs*7,02^,988.75; 4.6 V alu er's fee s: Siis. 528,440.20. The appellants accept l i a b i l i t y fo r items 4.5 and k .6 but dispute the re s t. The p o sitio n is that general d.?jr.a^os are such as the lav/ w i l l presume to be the d ire c t, natural or probable consequence o f the act complained o f (see Stroms Bructas Akt ie_ Bolafi v» JoJm^J^PoJier Hutchdjispn ^1*90^7 AC 515) 5 the defendant's wrongdoing must-* th e refo re , have been a cause, i f not the s o lo , or a p a rtic u la rly s ig n ific a n t, cause o f the damage* In approving iteris 4.1 and 4.2, the judge merely observed that counsel fo r the judgment debtor had generally accepted those losses to have been caused by the detention o f the machinery; as regards items 4*3 and 4*4, he said the detention o f the machinery had prevented the re a liz a tio n o f the factory p ro je c t, rendering nugatory the payments fo r s t a f f tra in in g . * ..A Submitting cn item 4,1, Dr. A lex Nguluma fo r the appellants argued that in te rest on the cost o f the machinery was not a d ir o c t, n atural or probable consequence o f the machinery's detention. His argument was th re e -fo ld : F ir s t , the in te re s t was charged by the su p p lier because the respondents acquired the machinery on c r e d it, the p rice being payable in nine s ix monthly instalments, the f i r s t instalment being due on 1 5 ,6,8 3 and th_- la s t on 15*6,87, The l i a b i l i t y fo r in te re s t thus arose independently o f tha detention o f the machinery; indeed, before the deten tion . Second, or in the a lte rn a tiv e , the detention o f the machinery was not accountable fo r the fa ilu r e to meet the installments; at the date o f the detention, 4,3,87, a l l the instalm ents, except one o f 1 5 •^•8 7 , had already become due. F in a lly , the detention o f the machinery was not the cause fo r the fa ilu r e o f the fa cto ry p r o je c t. The machinery a rriv ed from the United States in November 1982 and, in the evidence fo r the respondents, the f i r s t year o f operation would fcave been 1984 and f u l l production should have been attain ed durir^g 1986. The detention o f the machinery cane in March 1987, In t o t a lit y , th e refo re , the l i a b i l i t y fo r in te re s t was not a re s u lt o f the detention. Dr. Nguluma also observed, that even i f any in te re s t was paid beyond 15.6,87, i t was in the nature o f s p e c ific damage, Ke concluded that the argument on item 4,1 a pplied to other items. Mr. Habere Marando appearing fo r the respondents did not seek to address Dr. N^uluiTia's arguments but observed that the arguments were new and had not been put to K a ji, J, He a lso observed that counsel fo r the judgment-debtor had admitted the claims before- K a ji, J, except fo r items 4.3 .and 4.4, Ho concluded that the machinery was s t i l l detained, as the appellants had obtained a stay o f execution, ana argued that "h is was a case fo r the award 5 o f exemplary damages. The ease presents no d i f f i c u l t y . As w ell demonstrated by counsel fo r thu appellants, and not disputed, n either i t on; ^.1 nor k ,2 was the d ire c t, natural or probable consequence o f the detention o f the machinery. I t is not necessary to repeat the argument on item **.1 • iiS regards iter. ^.2, the respondents were unable to pay customs duty o f ohs. 5^7 , 683.00 whan the machinery a rrived at Dar es Salaam p o rt. They were advanced that sum by the Treasury in November 1982, to be repaid w ith ir a period o f twelve months a ft e r a grace period o f three months with in te re s t at 12?o p .a . The l i a b i l i t y fo r in te re s t therefore had no connection with the detention o f the machinery in 1987. We also agree with Br. Nguluna that in te re s t ge n era lly, and not merely in te re s t which nii lit have been paid a ft e r 1 5 *6 . 87, had a t the in s titu tio n o f the su it become s p e c ific and could not be claimed as general damages. We wish to adopt a statement to th is e ffe c t in Mctoojror__ on Dapago_s, 15th Ed. Para 1758“ that - When the precise anount o f a p a rticu la r iten has become clea r before the t r i a l , e ith e r because i t has already occurred and so become c r y s ta lliz e d or boc?>usa i t c i i be measured t with complete accuracy, th is exact loss must be pleaded as s p e c ia l damage. I t seems to us curious that K a ji, J. merely adopted the p o sitio n o f counsel fo r the respondents/decree-holders. The duty was on the learned judge to examine the evidence and the law and make a judicious decision . We b e lie v e he would not have fa lle n .../ 6 6 in to the error he did had he done g o . I t is also no answer to the judge's apparent inattention to the evidence that he did not have the advantage o f arguments as were addressed to us. A l l that was s^id are fa cts derived from the evidence adduced before Kkude,• J • which the learned judge had an o b lig a tio n to read. F in a lly , with due respect to the learned judge, items 4.3 and k .h were s p e c ific payments fo r train in g which should have been pleaded as s p e c ia l' damages. Moreover, i t is not the detention o f the machinery which caused the respondents to incur the l i a b i l i t y so as to be it s conscquence. As stated e a r lie r , the appellants are not at issue with items 4.5 and 4.6, the depreciation and the valu er's fee re s p e c tiv e ly * Indeed in the to r t o f trespass to goods the measure o f damages is the extent o f thu depreciation whore the goods s t i l l e x is t raid have been restored to the p l a i n t i f f . Mr. Marnndo pointed out that the machinery remains detained, as the appellants obtained a stay o f execution, gnd prayed fo r exemplary damages• We consulted the records and s a t is fie d ourselves that the stay granted by Raaadhani, JA on 23.5«97 re la te d s o le ly to 'the pecuniary award; i t did not touch on the restoration o f the machinery ordered by K a ji, J . It is somewhat surprising that the respondents have never sought to execute the order at the a p p ella n ts’ expense but have been w aiting fo r the- appellants to d e liv e r the machinery. In the premises, the appeal is allowed and the award is set aside as i t re la te s to items 4*1 to 4*4. I t is also proposed to make some orders on item 4.5. The depreciation covered the period 1982 to 1995j a period o f 13 ye ars, but the detention accounted .../ 7 fo r nine (9) years o f th is (rounding up the y ^ a rs). 'Therefore the appellants are equitably lia b le fo r n ine-th irteen th (9/1Jth) o f Shs. 6,770,988,75. Moreover, the records before- us in dicate that the appellants had already paid nominal damages o f fc>hs. 10,000.00 as ordered by Mkude, J. and in te re s t thereon o f Sag. 2,100.00 before that order vns s e t aside by th is Court. The two suras should be set o f f from the :=u*iount payable to the respondents. The appellnnts w i l l have the costs o f the appeal. Dj.TiiD at D :li ££ th is 28th day o f January, 2003. h.ft . KoLUGAKINGIRA JUjiTICE OF J . « . KKSC JU... JLF .JdP^iL MUNUO aPPiLX I c e r t i f y that this is a true copy o f the o r ig in a l. f ( F . L .K . v ,i^ ,B iil ) Diii-UTY RtiGISTTCJEi