theobald mazoba ta baobab beach bungalow vs real insurance t ltd 2011 tzhccomd 2039 29 june 2011

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 67 OF 2008 THEOBALD MAZOBA t/a BAOBAB BEACH BUNGALOW.......................... PLAINTIFF VERSUS REAL INSURANCE TANZANIA LIMITED.......... DEFENDANT RULING Mruma, J. The plaintiff Mr. Theobald Mazola represented by ASSYLA Attorneys has instituted this suit against the defendant Real Insurance Tanzania Limited praying for the following orders:- (a) Payment of a sum of TZS 31,320,000/= being indemnity for the accidented Nissan Safari vehicle with registration number ZNZ 64197; (b) Payment of a sum of TZS 100,000/= per day from 3rd July, 2008 to the date of payment; i (c) General damages at a rate to be assessed by the Court; (d) Interest on (a) and (b) at the commercial rate of 40% from 3rd July 2008 to the date of Judgment; (e) Interest on the decretal sum at the court's rate of 12% from the date of judgment to the date of satisfaction of the decree; (f) Costs be provided for; (g) Any other orders or relief the court may deem fit. At a closure of the plaintiff's case, Ms. Kireth counsel representing the defendant made a submission of no case to answer and seeking the court to dismiss this suit on that ground only. A submission of no case to answer is rarely preferred in civil suits as the court has discretion after refusing a no case to answer plea to proceed to consider the suit on the strength of the evidence adduced by the plaintiff only. This is so because the court may be of the view that by making a plea of no case to answer, on the evidence adduced by the plaintiff the defendant feels that he has nothing to offer in defence. That notwithstanding Ms. Kirethi made the submission By consent counsels addressed me on this point by way of written submissions. This is my ruling on the issue. 2 Briefly stated, the facts of the main suit are as follows:- The plaintiff is claiming to be the owner of a motor vehicle make Nissan Safari (hereinafter the vehicle) with registration number ZNZ 64197 which was comprehensively insured by the defendant forT.shs 35,000,000/= on the 12th May, 2008. On the 25th June, 2008 at Kamata area within Ilala Municipality in Dar Es Salaam while being driven by the plaintiff the vehicle was involved in an accident and was severely damaged. Immediately after the accident the plaintiff reported to the Police and to the Insurance Consultants known as Milembe Insurance Consultants who are Insurance agency. The plaintiff lodged its claims with the defendant but the defendants repudiated the claim hence this suit. At the first pre trial and scheduling conference the plaintiff intimated that he would call three witnesses. The first witness Mr. Theobald Mazoba PW1 himself gave his testimony on 28th September,2009 and the matter was adjourned for further hearing of the plaintiff's case on the following day i.e. 29th September, 2009. On that later date Mr. Lutema counsel for the plaintiff reported that he had failed to procure the attendance of his next witness and therefore he requested for an adjournment for another hearing date. The prayer was duly granted and the matter was rescheduled for further hearing on 17th November, 2009. 3 However, due to the appointment of the trial judge honourable Werema J, to the post of the Attorney General of the United Republic the case stalled for about three months up to February, 2010 when it was re-assigned to me. But from February, 2010 when it was re assigned to me the plaintiff could not manage to procure the attendance of his other witnesses until 24th February, 2011 when the plaintiff's counsel was ordered either to call his next witness or to close the plaintiff's case. He opted to close the plaintiff's case. It is upon that closure of the plaintiff's case that Ms Kirethi made a submission of no case to answer. Ms. Kirethi has pegged her submissions on four grounds arguing that the plaintiff has not been able to establish a prima facie case to warrant this court to call upon the defendant to give its defence. The arguments are pegged on the following grounds:- (i) That there is no cause of action against the defendant; (ii) That the plaintiff is not a proper party to this suit and (iii) That the plaintiff's evidence submitted before this court has not established a premafacie case against the defendant. Expounding her first ground the learned counsel submitted that the plaintiff is not privy to the contract of insurance because he has no power of attorney to represent the insured Company which is the Baobab Beach Bungalow and he is neither a registered owner nor a shareholder or a person claiming under 4 the said Baobab Beach Bungalow, therefore he has no right to sue. In support of her submissions on this point she has referred this court to numerous authorities including Mwalimu Paul John Muhozva versus Attorney General (No.2) (19961 TLR 229, National Bank of Commerce Ltd versus Ubunqo Petrol Station Ltd and another. Commercial Case no. 141 of 2001 (unreported), John Bvombalilwa versus Agency Maritime International (T) Ltd (1983) TLR, Kavania versus New India Assurance Co. Ltd (1968) EA .Twiddle Versus Atkson and eminent authors including Mulla on Civil Procedure Code and Sarkar on Evidence. On the other hand it has been submitted for the plaintiff that the plea of no case to answer is misconceived and all submissions suggesting that the plaintiff is not privy to the insurance contract or does not have power of attorney are misguided because the plaintiff is the actual owner of the said motor vehicle and the Baobab Beach Bungalow is his own trading name. It is submitted further that the plaintiff is actually the one who entered into contract of insurance with the defendant and the name appearing on the documents is just the plaintiff's trading name. In rejoinder Ms Kirethi has contended that no evidence has been led up to the closure of the plaintiff's case to prove that indeed Mazoba PW1 trades in the name of the Baobab Beach Bungalow or that that name is registered as per the Business Registration 5 Act. The learned counsel says that nowhere in the evidence of PW.l who appears to be the claimant in this suit is it indicated that indeed Baobab Beach Bungalow is his own business name but to the contrary he clearly stated that it is a friend's Company. To prove that the said name is a legal entity, the defendant have gone further to undertake an official search which shows that indeed Baobab Beach Bungalow is registered Company in Zanzibar- only with addition of "s" on the Bungalow-making it Bungalows". Both counsels have made brilliant submissions in their own turn and I am quite grateful to their well cited authorities, which I do take note of with approval. However, at this stage a submission of no case to answer having being dully made the only question this court is called to answer is whether the plaintiff has sufficiently made a case against the defendant so as to warrant calling it to the dock to defend itself. By this submission the defendant seeks to persuade this court that the evidence adduced by the plaintiff is so unsatisfactory and unreliable that the court should find that the burden of proof has not been discharged. I beg to start with the plaintiff's locus in this case which is pegged on the ownership of the accidented vehicle then I will investigate his relationship with the defendant and finally his relationship 6 with the said Baobab Beach Bungalow. These are the points upon which the parties are diametrically opposed. In his evidence the plaintiff tendered a motor registration book Exhibit P.l, the Insurance Policy Cover note (Exhibit P.2), a receipt acknowledging payments for the premium (Exhibit P.3), and Police Report of the accident (Exhibit P.4 collectively). Alongside these pieces of evidence, there is the testimony of Theobald Mazoba PW.l himself. In his opening statement during examination in chief PW1 stated that; "I know Baobab Beach Bungalow. It is owned by mv friend. I have been using it to import products" And during cross examination Mazoba stated that "Baobab is a Legal Company. I am not a director of the Company. I am not a shareholder. According to the records....the vehicle belongs to Baobab Beach Bungalow. I am not authorized by them to claim on their behalf. There is nowhere in this policy where my name features. The confession that Baobab is owned by his friend was repeated in re-examination by his counsel, where he confirmed that:- "Baobab Beach Bungalow is owned by my friend. I do not know his actual name." 7 That is the undisputed testimony of the plaintiff. A thoroughly scrutiny of this evidence reveals that Theobald Mazoba who instituted this matter cannot have a locus standi in the matter for the following reasons: Firstly, he claims to be the owner of the vehicle and attempted to prove his ownership by tendering in evidence a motor registration card (Exhibit Pl.). The motor vehicle registration card which in law confers ownership of the vehicle in question indicates that the said vehicle belongs to Baobab Beach Bungalow. In the plaint the plaintiff indicated that he trades in that name and it has been submitted for him that in fact he is trading in the name of Baobab Beach Bungalow and therefore owner of the said car. But in his own testimony Mazoba PW1 contradicted his own pleadings (and of course the subsequence submissions of his counsel) by boldly stating that the company was a legal entity owned by his friend. This statement which is made on oath and the absence of concrete evidence to the contrary negates his ownership over the said vehicle. Nothing on record not even the receipt dated 16/5/2005 (Exhibit P3.) allegedly issued to him and tendered in evidence can come to his rescue and establish that he was actually the owner of the motor vehicle. As to his relationship with the defendant, counsel for the plaintiff has submitted that to be added on the list of undisputed facts is 8 the fact that the plaintiff was trading in the name of Baobab Beach Bungalow. This view was negated by the plaintiff himself in his testimony as he stated un hesitantly that Baobab Beach Bungalow belong to his friend and that he was just using it to import his goods. Thus, while there is no doubt that there is a contract of insurance between the Baobab Beach Bungalow and the defendant's company as the plaintiff has clearly stated that he is not related to the said Baobab Beach Bungalow, except for his friendship with its owner. It goes without saying that there can be no contractual relationship between the plaintiff and the defendant's company. Again as rightly submitted by the counsel for the defendant, the plaintiff in this case is not privy to such contract and since he had no any power whatsoever to sue or at least show that he claims under the said Baobab Beach Bungalow, this suit cannot be maintainable against the defendant unless initiated it is by the proper party to the contract, the Baobab Beach Bungalow or its proprietor. It is very unfortunate I can say that, counsel for the plaintiff over looked the importance of proving the nexus between the plaintiff and the defendant on the one hand, and the plaintiff and the said Baobab Beach Bungalow (which owns the vehicle as per Exhibit Pl.) on the other hand. Had he investigated this he would not have instituted this suit the way he did. 9 As rightly submitted by the counsel for the defendant the evidence adduced and exhibits tendered do not discharge the burden of proof required to shift the burden to the defendant. In this circumstance, this court will not vindicate an insurer to battle a claimant who is a stranger to the contract of insurance or who fails to establish on preponderance of probability his entitlement to indemnification or even his right to institute legal action. Since Baobab Beach Bungalow the owner of the accidented Motor vehicle has not put up a claim for indemnification, there is no case for the defendant to answer in so far as the vehicle herein is concerned. This court having so found doth hereby orders that. i. The suit is hereby dismissed in its entirety ii. The defendants shall have their costs of the suit. A.R. MRUMA JUDGE Date: 29/6/2011 10 29/6/2011 Coram: Hon. A.R.Mruma, Judge. For the Plaintiff - Mr. Chipeta for Mr. Lutema for Plaintiff. For the Defendant - Mr. Chipeta for the Defendant. CC: J. Grison. COURT: Ruling delivered in presence of Mr. Chipeta Advocate for the Defendant who also holds brief of Mr. Lutema, Advocate for the Plaintiff who is absent - this 29th day of June 2011. A.R. MRUMA JUDGE Date: 29/6/2011 2,349 Words li