20101029 TZHC Moshi

IN THE HIGH COURT OF TANZANIA ATMOSHI , (DC) CIVIL APPEAL NO. 12 OF 2008 [ORG. MOSHI RM CIVIL CASE NO. 12/2005] TCHIBO ESTATE LTD: ........... APPELLANT VERSUS HIPOLITI MAKO I ................. RESPONDENT JUDGMENT S.E. MUGASHA, J. · In the District Court of Moshi, the respondent sued the appellant and 4 other persons in Civil Case No. 12 of 2005. The trial court entered Judgment and decree against appellant as follows and I quote: (a) Tshs.1,000,000/= as per paragraph 15 of the Plaint (being cost of treatment · and transport for three months). (b) Interest on at a rate of 21 % per annum from 8/1/2003 to the date of filing the suit. (c) General Damages on amount to be determined by court not less than Tshs.99,000,000/=. (d) Interest on decretal amount at the rate of 21 % from the date of filing this suit to the date of Judgment. (e) Interest at Court rate from the date of Judgment until settlement in full. (/) Costs and any other relief that this court may deem fit and just to grant. Aggrieved, the appellant has appealed to this court raising six grounds of appeal namely: 1. That the entire trial, inclusive the judgment and the decree are a total mess. 2.. That the trial court adopted a wrong approach in awarding special and general damages. 1 .,. I ' 3. That the trial court erred in placing overdue weight and relying on the exhibits tendered in court. 4. ·That the judgment of the trial court is not supported by the evidence on record. 5. That the trial court did not apply the relevant principles properly in awarding general damages. 6. That the trial court erred in fact and law in not considering the defense evidence at all. The appellant was represented by Mr. Sandi and the respondent appeared in person. Parties asked and weie allowed to proceed by way of written submissions. Apparently, Mr. Sandi learned Counsel for appellant did not submit on the mess found in decree and judgment of the trial court as stated in the first ground of appeal. The respondent also followed the same track Therefore in considering the first ground of appeal, it remains to the court to uncover the mess and decide appropriately. Initially, the court entered ex-parte judgment against the appellant and four others. However, the ex-parte Judgment was set aside and the suit was restored. On 13/2/08, following issues were framed in the presence of the parties and Mr. Ng'maryo who was defence counsel during trial: (l)Whether the defendants assaulted the plaintiff. (2) Whether the assault caused him grievous harm. (3) Whether plaintiff suffered any damage and if so to what extent (4) Whether the 5th Defendant is responsible for any damage if any. 2 However, the trial magistrate in her judgment, determined one issue namely: "Whether the defendants did assault the plaintiff." Relying on exhibits tendered at the trial and belief on existence of Criminal Case No 1038 which was before Hon. Mwaiseje, the magistrate concluded that, the appellant and four others did assault respondent and should pay compensation to the respondent. In order to properly conclude if the assault did cause grievous harm and extent of damage suffered by the respondent if any, the trial Magistrate must have determined 2nd, 3rd and 5th issues. However, she skipped such pertinent issues and yet concluded that, the respondent is entitled to damages. Despite the trial court's conclusion that, the appellant and four others did assault the respondent, that was solely not sufficient to dispose the suit in its entirety. The determination of the three left out issues could have guided the court on the proper assessment as to extent of damages if any~ what the respondent is entitled to and finally who should pay dama.ges. Failure to resolve the three pertinent which I consider to be .crucial in determining the suit in its entirety, is also contrary to Order XX rule 5 of the Civil Procedure Code Cap 33 RE: (2002) which provides: "In suits in which issues have been framed, the court shall state its finding or decision, with the reason therefore, upon each separate issue unless the finding upon any one or more of the issues is sufficient for the decision of the suit". The omission by the trial magistrate renders the suit not conclusively determined. In the premises, the trial court's judgment and decree are void for failure to the dispose the entire suit conclusively. The determination 3 ... that the appellants and four others did assault respondent is not on its own ' sufficient to justify a claim of damages sought by respondent. In view of .. () this irregularity, the trial was vitiated occasioning a miscarriage of justice. To cure the illegality, I invoke revision powers provided under section 79(1) (c) of the Civil Procedure Code and accordingly nullify the entire proceedings, judgment and decree in civil case No 12 of 2006. In the upshot, the case should be tried de novo before another magistrate with competent jurisdiction. In the event that it is the trial court's fault for rendering the proceedings a nullity, every party shall bear own costs. S.E.MUGASHA JUDGE 29TH OCTOBER, 2010 4