19991118 TZHC Dar es Salaam

. IN THE HIGH COURT OF TANZANIA . DAR· ES SALAAM DISTRICT REGISTRY . AT DAR.ES _SALAAM CIVIL -APPEAL CASE N0.46 OF 1997 THE INSTITUTE OF FINANCE MANAGEMENT •••.••...•........ APPELLANT VERSUS MOHAMED 3J\LEHE R.t,SHID • • • • • • RESPONDENT J_U_D G M_]....N.J: BUBEStfI, J. The respondent, original plaintiff filed a claim against the appellant wherein he claimed, inter alia, compensation in damages for fals~ imprisonment, damages for defamation and costs for food wasted on 30/8/95 amounting to TShs.150,000/=. As the appellant, then defendant fail·ed to file their written statement of defen_ce, the counsel for the· respondent prayed for and was granted leave to proceed exparte. The court record shows that a chamber application praying for exparte proof by oral evidence and affidavit was filed. Immediately thereafter counsel fer the plaintiff filed written-submission on behalf of the plaintiff, iLn other.words, the court did not summon the respondent, then plairitiff to give evidence. In his short judgment delivered on 20/11/95, the trial magistrate based his findings on the submission filed by the plaintiff's couns,:?1- alone. This I think was a serious error on the pa.rt of the trial magistrate. In cases of defamation, the claim by the plaintiff has to be proved on the basis of evidence tendered.- It has to be 0bserved tha.t the respondents claim included "'." compensation for the cost of food wasted - TShs,150,000/= one mill ion shj.11 ings for false i-rnprisonment seven million as damages fer slander and costs. 2 In that event, the trial magistrate was duly bound to analyse each claim as:.per evidence·tC?nd2red, to see whether the plaintiffs/now rcspcndent, claims have been proved or otherwise. This the trial court did - ....... . not do. How·then could he enter judgment for the respondent without clear analysis cf the individual claims? In the premises I have no reason to depart from the subrni'ssicn made by Dr. Nguluma for the appellant and allow this appeal. I do so because,.the judgment of the trial magistrate was not based on any evidence. While I· allow this appeal, this court orders that · the case be rerni tted to the trial CDurt to proceed w_i th the · taking of oral evidence by the plai11tiff, respondent, ·/, then as ordered on 25/10/95. Since the· appllant had - forfeited his right to appeal in court, the matter to proceed exparte by oral evidence. It is further ordered that the exparte hearing ~o proceed before another competent magistrate, . , apart from MIRW.BE RM. I make no order as to costs. Delivered before A.G. BUBESHI Mwengela for R~spcndent JUDGE and ur. Nguluma for 18/11/99 Appellant •. Certified true copy of the Original. 3 such refusal. Hence the tort of false impri~onment had been committed by the appellant on the person of the respondent, sc clc:iimed the latter. In my considered •view, this is a case when evidence had to be led to establish the complaint. Why couldnt the trial magis,trate proceed exparte by oral evidence? In any event the appel-1,::mt had decided to withdraw the complaint and forgiven the respondent. Surely with all this happening wculd the claim of TShs.9 million still st3nd? I think not. Further,general damages are discretionary on the, part of the trial court. , ,";\ ',) What was the basis of awarding it without acrutiny by the same? It was errenous o~ the part of the trial court to award it as if it had been proved •. I am satisfied that the trial court had failed to exercise its discretion judiciously. I therefore find this to be is a case which -i.'".::- require the intervention by this court. In the premises, I allow the appeal without considering the other grounds, the exparte judgrr,ent and subsequent orders of attachment and sale of appellants property are also set aside forthwith. I make no order as to costs. Delivered b0fore Mr. Nyovela for the Appellant, and in absence of the Respondent. j f