registered trustees of avengerical lutheran church of tanzania southern diocese vs sigrada wilhem mligo 2023 tzhc 22769 14 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) ATIRINGA CIVIL APPEAL NO. 13 OF 2023 (Original Civil Case No. 02 o f2022 o f the Resident Magistrate's Court ofNjombe before Hon. L.M. Chamshama, PRM) THE REGISTERED TRUSTEES OF' EVANGELICAL LUTHERAN .........................................APPELLANT CHURCH OF TANZANIA SOUTHERN DIOCESE s VERSUS SIGRADA WILHEM MLIGO (Administratix of the estate of the Late Kaselida Kalo Mlowe) .RESPONDENT JUDGMENT 03rd October & l4 hNovember, 2023 I.C MUGETA, J: The trial court made several findings of facts before awarding Tshs. 70,000,000/= to the respondent as general damages for the loss of life of Kaselida Kalo Mlowe @ Costrida due to accident involving a motor vehicle No. T210 AHU, Mercedes Benz Truck, property of the appellant which was driven by Rajab Kitwana Salum who was the 1st defendant. The deceased was a passenger in motor vehicle No. T298 DNE, Toyota Hiace. The findings of facts are that the respondent is the administratrix of the deceased estate and the deceased is survived by three children and parents. That driver of the truck was employed by Page 1 of 11 the appellant, he drove negligently and the accident occurred in the course of his duties, That the motor vehicle of the appellant was driven without insurance cover and finally, that the appellant and the driver are vicariously liable for damages for causing the death of the deceased. The appellant who is represented by Marco Kisakaii, advocate, has filed ten (10) grounds of appeal. The respondent being represented by Emmanuel Chengula, advocate, has resisted the appeal which was argued by way of filing written submissions. Counsel for the appellant has argued jointly the 1st and 2nd grounds, 3rd and 5th grounds and the rest of the grounds separately . The argument in the 1st and 2nd grounds of appeal is that the trial court failed to properly evaluate the evidence in several aspects. Firstly, that the respondent failed to establish the duty of care which the appellant owed to the deceased due to the fact that she was not a passenger in her truck. Secondly, that it was not proved that the appellant's motor vehicle knocked the car in which the deceased was a passenger as no sketch plan or police officer testified to that effect. Thirdly, that it was not proved that the deceased had a duty to maintain her children in exclusion of their father nor that her parents depended on her. Page 2 of 11 I find the foregoing argument interesting. As argued by counsel for the appellant, the driver of the appellant's motor vehicle was charged criminally, among other counts, with causing death through careless driving and he pleaded guilty. Indeed, the deceased was in another car which was knocked by the truck of the appellant. In case of road accidents, the duty of care is not limited to the driver of the passengers' car but all motor vehicle drivers. The fact that the driver of the appellant knocked the other motor vehicle recklessly, makes the appellant and the driver vicariously liable for the consequences of the accident. The driver of the truck had a duty of care to other road users including passengers in other motor vehicles. The proof that the appellant's truck knocked the passengers' vehicle is the driver's plea of guilty in exhibit P3. I shall discuss matters of children and parents as dependants of the deceased when dealing with the complaint regarding the award of damages where the argument is more relevant. For the time being it suffices to say that the complaint in the first and second grounds of appeal has no merits. They are dismissed. The complaint in the 3rd and 5th grounds of appeal is that the respondent did not sue the owner of the passengers' vehicle. The learned counsel has argued that the passengers' vehicle contributed to the death of the deceased. Further, that the passengers' vehicle No. T Page 3 of 11 298 DNE owner ought to have been sued as passengers' vehicles have third party insurance. The complaint, therefore, has two aspects. Firstly, it is based on non-joinder of parties and secondly, a defence of contributory negligence. It is true the respondent had a cause of action against both motor vehicles including the passengers' vehicle. However, it is not true that the passengers' motor vehicle owner, whose driver is criminally not responsible, was a necessary party. As argued by counsel for the respondent, under the facts of this case, the respondent had a right to choose whom to sue for damages. On contributory negligence, there is no evidence on record that the passengers' motor vehicle contributed to the occurance of the accident. Notwithstanding, under the facts of this case, the appellant can raise that defence against the owner of the passengers' vehicle and not the passengers. Unfortunately, he is not a party to the case. The 3rd and 5th complaints lack merits. They are dismissed. The fourth complaint is about the award of general damages. The complaint is that the same has been awarded on criteria which are not correct in law and principle. That the award is based on unestablished income of the deceased. The learned counsel cited Mohamed Enterprises Tanzania Ltd v. Musa Shabani Chekachao, Civil Appeal No. 51/2018, Court of Appeal - Tabora (unreported) to support Page 4 of 11 his argument. Counsel for the respondent replied that general damages are awarded at court's discretion and Tshs. 70,000,000/= damages for loss of life is not on the high side. Firstly, I wish to distinguish the case of Mohamed Enterprise (T) Ltd (supra) with the present case because in that case the defendant was not found guilty of negligence. Her error was to use a normal motor vehicle to transport money without enough security which resulted into robbery leading to death of the employee. Further, in assessing general damages in that case, the court considered the fact that the victim's survivors had received some compensation under the Workers Compensation Act, 2008. Indeed, as argued by counsel for the appellant, in assessing damages in a tort suit, evidence of income of the deceased is important. In this case there is evidence that the deceased was a casual labourer at TANWAT who earned Tshs. 200,000/= per month and had five dependants. These are three children and two parents. According to the report on post-mortem examination, the deceased was aged 32 years. The respondent said she was 29 years. For the purposes of this case I take into account the bigger number in determining the remaining years to her retirement. If she was to retire at 60 years she still had 28 years to work with an annual income of Tshs. 2,400,000/=. Therefore, for the Page 5 of 11 rest of her life she would have earned Tshs. 67,200,000/=. Considering the intensity of the grief caused by the loss of the sole bread earner and the fact that accident was a result of a negligent act, the assessed damages cannot be said to be unreasonable. I find no reason to disturb them as they are awarded at the discretion of the trial court. The trial magistrate considered the needs of the minor children and negligence on part of the driver to award the damages. The argument that the children would be taken care of by their father is untenable as there is no evidence that their father is still alive. Even if there was such evidence it would not have made the appellant less liable. The fourth ground of appeal is also dismissed for want of merits. The complaint in the sixth ground is that the trial court held the appellant liable alone without apportioning any liability to the driver who was the 1st defendant. This is a fact. The trial court concluded: "... it is justice and moral o f the 2nd defendant to pay a general damages o f70,000,000/= " The 2nd defendant was also ordered to shoulder costs of the case. Counsel for the respondent's reply does not squarely address the complaint. It is simply that the appellant is vicariously liable. I agree, but the complaint is that both the defendants ought to have been held jointly and severally liable. This complaint haskmerit but there is nothing Page 6 of 11 I can do to help because the appellant did not appeal against the 1st defendant. Reversing the decision of the trial court to make him liable would amount to condemning him unheard. I understand, as first appellate court, I can reassess the evidence. However, that is after hearing all the parties. The 1st defendant is not a party to this appeal. The sixth ground of appeal is dismissed too. The complaint in the seventh and ninth grounds of appeal shall be determined jointly as they are interrelated. They concern the admission of exhibit P2 which is the police motor vehicle inspection report and failure to call material witnesses. The complaint in the first part is that the appellant was not a competent witness to tender the inspection report as it was not in her custody. That the competent witness was the police investigator and for his failure to testify to tender the report, the accident sketch map and to explain who caused the accident, the court should draw adverse inference against the respondent. The second part concern failure to summon the deceased's parents to testify on her age and income. In her testimony the respondent testified at page 11 of the typed proceedings that: "The police gave us the police inspection report". Page 7 of 11 This means the respondent was in possession of that document. Therefore, it is not true that the respondent did not explain how that exhibit came into her possession as submitted by counsel for the appellant. On the age of the deceased, the respondent (PW1) testified that she was aged 29 years. In the post-mortem examination report (exhibit P5), the doctor estimated it at 32 years. Therefore, age was proved. PW1 also testified on the income of the deceased. That she earned Tshs. 200,000/= per month. Therefore, parents were unnecessary witnesses. The respondents reply on cross examination that she does not have evidence to prove the deceased's earning does not negate her evidence to that effect because, in my view the answer referred to documentary proof not her knowledge about the deceased's income. On drawing adverse inference, I do not agree with counsel for the respondent that the principle does not apply in civil cases. In Hemed Laidi v. Mohamedi Mbilu [1984] TLR 113, it was held: "Where, for undisclosed reason, a party fail to call a material witness on his side, the court is entitled to draw an adverse inference that if the witnesses were called they would have given evidence contrary to the party's interest". Page 8 of 11 It follows, therefore, that the principle applies in civil cases too. However, in this case the Police Officer was an unnecessary witness if the respondent had the document in her custody. On who caused the accident, the evidence of the plea of guilty of the driver was sufficient. Under section 143 of the Evidence Act [Cap. 6 R.E 2022] no particular number of witness is required to prove a fact. The complaint has no merits. It is dismissed. The eighth ground of appeal is that the trial court relied on the weakness of the defence instead of the plaintiff's proof of the facts she alleged. That the plaintiff did not prove that the 1st defendant was employed by the appellant, the motor vehicle was not insured and that it had mechanical defects. Counsel for the respondent did not address this complaint. Notwithstanding, there is no dispute that the driver drove the motor vehicle on the authority of the appellant. For the purpose of tort and not labour law, that was employment. Further, the appellant did not counter by evidence the allegation that the motor vehicle was not insured. Since the insurance documents are expected to be in her custody, failure to produce them implies their absence. On mechanical defects of the car, exhibit P2 (the motor vehicle inspection report) shows defects after the accident only, therefore, the finding of the trial magistrate that the appellant's motor vehicle was Page 9 of 11 mechanically defective is not founded in evidence. I set it aside. Notwithstanding, the other findings are deeply rooted in evidence. The eighth ground of appeal has no merits. It is dismissed. The tenth ground of appeal is that the respondent had no cause of action against the appellant. The reason, it has been argued by counsel for the appellant, is that the respondent ought to have sued the owner of the passengers' vehicle or brought the investigator of the case to testify on who caused the accident. I agree with the counsel for the respondent that this argument is not only misconceived, but it ought to have been raised as a preliminary objection. Notwithstanding, the fact that the deceased died in an accident where the appellant's driver is blameworth is enough cause of action against the appellant by any victim of the accident. I find the tenth ground of appeal also lacking in merits. It is dismissed. In the event, the whole appeal is meritless. I dismiss it with costs. Page 10 of 11 Court: Judgment delivered in the presence of Mr. Marco Kisakali, learned advocate for the appellant who is absent, Ms. Baziia Ulomi, learned advocate holding brief for Mr. Emmanuel Chengula, learned, advocate for the respondent and respondent in person. Sgd. M.A. MALEWO DEPUTY REGISTRAR 14/ 11/2023 Page 11 of 11