Yulita Octavian Swai vs Moses Jackson Others CIVIL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM. CIVIL CASE NO. 105 OF 2023 YULITA OCTAVIAN SWAI (As Administratrix of the Estate of the Late Octavian Edward Swai) .....................PLAINTIFF VERSUS MOSES JACKSON ..................................................................1ST DEFENDANT UDA RAPID TRANSIT LIMITED.............................................2ND DEFENDANT NATIONAL INSURANCE CORPORATION OF TANZANIA LIMITED........................................................3RD DEFENDANT THE HON. ATTORNEY GENERAL...........................................4TH DEFENDANT JUDGMENT Date of last order: 09th September 2024. Date of Judgment: 08th November 2024. A. A. MBAGWA, J. The plaintiff in this case is suing as Administratrix of the Estate of the Late Octavian Edward Swai. She has instituted the suit against the defendants jointly and severally for payment of TZS 150,000,000/= being compensation for loss of (sic) years, TZS 100,000,000/= being 1 compensation for loss of expectation of life, TZS 40,000,000/= being compensation for pain and suffering of the deceased, TZS 40,000,000/= being compensation for loss of Comfort and amenities, cost of burial expenses at TZS 20,000,000/=, and TZS 50,000,000/= being general damages. It is stated that the compensation sought is for what the deceased family and his dependants went through following an accident which involved one Octavian Edward Swai (the deceased) and the 2nd defendant’s motor vehicle with registration Number T. 988 DGV make Golden Dragon Bus. The accident was caused by the 1st defendant’s negligent and reckless driving which claimed the life of the deceased Octavian Edward Swai. It is worthy to note that the 3rd Defendant was joined to the case as an insurer of the 2nd defendant’s motor vehicle that allegedly knocked and instantly caused the death of the plaintiff’s late husband hence liable for payment of the claimed damages/compensation if at all the 1st and 2nd defendants are found responsible. The 4th Defendant is impleaded as an interested party because the 2nd and 3rd defendants are government institutions. Briefly, the facts of the case as gleaned from the pleadings and evidence 2 go as follows; on 25th August 2020 at Manzese Tip Top area along Morogoro road within Kinondoni District, Dar es Salaam Region, the 1st Defendant being the driver of the motor vehicle with registration No. T.988 DGV make Golden Dragon Bus owing duty of care to the deceased and other road users, negligently/recklessly failed to control it as a result knocked one Octavian Edward Swai (deceased) and caused his instant death. Following that accident, the 1st Defendant was charged with two counts of Causing Death through Dangerous Driving and Dangerous Driving in Traffic Case No. 1008 of 2020 before the District Court of Kinondoni, whereby he was convicted and sentenced to pay a fine or serve a one-year imprisonment term. In addition, his driving license was suspended for six months. It was averred further that, the deceased was a businessman dealing with wholesale and retail business in different areas within the country up to the time of his death. As such, her husband’s death subjected the plaintiff and her family to undefined difficulties including failure to pay school fees for her children and psychological torture. The amicable means to get compensation from the defendants proved futile hence she resorted to instituting the present suit. 3 Upon service, the 2nd, 3rd, and 4th defendants filed their joint written statement of defence vehemently disputing the allegations on the plaint and prayed for, among other things, the dismissal of the suit. On the other hand, the 1st defendant despite being duly served, did not enter appearance. Thus, upon application by the plaintiff, this court ordered an ex parte hearing against the 1st defendant. At the hearing of this suit, the Plaintiff was represented by Mr. Joseph Sakwera, learned advocate whilst the 2nd, 3rd, and 4th defendants were represented by Mr. Urso Luoga and Mr. Abeid Buzohera, both learned State Attorneys. Before the the hearing commenced, the court after consultation with the parties’ advocates framed two issues for determination of the parties’ dispute; (i) Whether the amount claimed by the plaintiff to wit, TZS 350,000,000/= is justifiable. (ii) To what reliefs are parties entitled? In a bid to prove her case, the Plaintiff testified as a sole witness (PW1) whose witness statement was adopted and admitted to form part of her testimony. In addition, the plaintiff tendered two (2) documentary exhibits 4 namely, a Letter appointing her (Yulita Octavian Swai) as administrator of the estate of the late Octavian Edward Swai dated 13/04/2021 and issued by Magomeni Primary Court (Exhibit P1) and a Copy of proceedings in Traffic Case No.1008 of 2020 between the Republic vs Moses Jackson. On the other side, the 2nd, 3rd, and 4th defendants jointly paraded one witness namely, Amani Kapela Mollel (DW1) and tendered three documents namely; a letter from National Insurance Corporation of Tanzania (NIC) with ref No. BA.51/202/17/28 dated 12th August 2022, discharge voucher worth Tanzania shillings five million eight hundred forty thousand, and a letter from Mataara Law Office with ref No. AAA/YS/NIC/2022/03 dated 21st July 2022 which were received and collectively marked (Exhibit D1). It was the plaintiff’s evidence that by losing her husband she suffered damages loss of expectation of life, loss of earnings, loss of companionship and amenity, single parenting to her children, and failure to support their secondary school continuation, all affecting her mentally and psychologically. Further PW1 told the Court that, she incurred costs for funeral services which cost her TZS 20,000,000/=. 5 It was PW1’s testimony that her husband was a businessman earning income and was the bread earner, taking care of and educating the children. She said that her husband’s death resulted in the loss of earnings to the family hence a reason for claiming compensation to the tune of TZS 350,000,000/=. PW1 stated that the driver who was driving the motor vehicle that caused the accident and ultimate death of her late husband was an employee of the 2nd defendant and the vehicle involved was insured by the 3rd defendant. When cross-examined by Mr. Urso, learned State Attorney, PW1 reiterated that she claimed TZS 350,000,000/= as compensation but she was offered by 3rd defendant only TZS 5,000,000. She, however, admitted that no evidence was tendered to substantiate the claimed amount. In contrast, Mr. Amani Kapela (DW1) denied the plaintiff's claims. Although DW1 admitted to having knowledge of the accident and the resultant death of the late Octavian Edward Swai, he forcefully stated that the plaintiff’s claim of TZS 350,000,000/= was unjustifiable. Mr. Amani Kapela stated that the appropriate amount according to the Tanzania Insurance Regulatory Authority Guidelines (TIRA Guidelines) was TZS 5,840,000/=. 6 When cross-examined by Mr. Sakwera, Mr. Amani Kapela (DW1) conceded that they were notified that the deceased was survived by the dependants and that his dependants lacked necessary needs due to his death. DW1 insisted that upon their evaluation based on the evidence submitted to them, the appropriate compensation to the plaintiff was TZS 5,840,000/=. Upon conclusion of the hearing, this Court granted leave to the parties to file final written submissions. Gratefully, both parties complied with the filing schedule. I have given earnest consideration to the rival submissions but I will not reproduce them verbatim. I will only refer to them, where relevant, in the course of my deliberation. Having gone through the adduced evidence and submissions from the parties, it is not opportune to determine the framed issues. Starting with the first issue namely, whether the amount claimed by the plaintiff to wit, TZS 350,000,000/= is justifiable, Mr. Urso and Abeid for the 2nd, 3rd, and 4th defendants submitted that there was no evidence to substantiate that claimed amount. It was also submitted that human life can not be atoned in monetary value. That aside, they argued that 7 compensation to the tune of TZS. 5,840,000/= which was offered to the plaintiff through the Discharge Voucher (Exh. D1) was reasonable. In rebuttal, Mr. Sakwera was of the contrary view submitting that the deceased died and later was transported to Kilimanjaro for burial. Sakwera also submitted that during the burial ceremony people ate, drank, sat, and traveled from one point to another thus costs were inevitable. As alluded to above, the plaintiff’s claims are compensation to the tune of TZS 350,000,000/= as specific damage and TZS 50,000,000/= being general damages, interest at court rates from the date of the accident to the date of payment and costs of the suit. The law is very settled on the award of damages particularly special/specific damages. Unlike general damages which are awarded at the discretion of the Court, special damages must be specifically pleaded, particularised, and strictly proved. Special Damages are strictly proved and cannot be presumed by law. They are special expenses incurred or monies actually lost. In times without number, the Court of Appeal and this Court have insisted and reiterated this position. See the cases of 8 Zuberi Augustino Vs. Anicet Mugabe, [1992] T.L.R 137, Peter Joseph Kilibika and Another Vs. Patric Aloyce Mlingi, Civil Appeal No. 39 of 2009. CAT at Tabora (unreported) which cited with approval the holding of Lord Macnaughten in Bolog Vs. Hutchson (1950) A.C 515 and Reliance Insurance Company (T) Ltd and 2 Others Vs. Festo Mgomapayo, Civil Appeal No. 23 of 2019 (CAT-unreported). In the case of Zuberi Augustino (supra) at page 139, the Court of Appeal expressly said: ’It is trite law, and we need not cite any authority, that special damages must be specifically pleaded and proved’. (Emphasis supplied) Similarly, in the case of Reliance Insurance Company (t) Ltd, (supra) the Court had the following to say in respect of proof of specific damages: ‘The law in specific damages is settled, the said damages must be specifically pleaded and strictly proved... ’ (Emphasis supplied.) To begin with the claim on the specific damages, the plaintiff in the plaint, particularised the claimed specific damages of Tshs. 350,000,000/= in the 9 following breakdown: TZS 150,000,000/= being compensation for loss of years, TZS 100,000,000/= being compensation for loss of expectation of life, TZS 40,000,000/= being compensation for pain and suffering of the deceased, TZS 40,000,000/= being compensation for loss of Comfort and amenities and cost of burial expenses at TZS 20,000,000/= In the final submissions, both Mr. Urso and Bhuzohera, learned State Attorneys for the 2nd, 3rd, and 4th defendants resisted the claimed specific damages arguing that the plaintiff failed to strictly prove them. On the claim of TZS 150,000,00/= for loss of years. The Plaintiff did not specify the number of alleged years or particularize how she came up with the said figure. No books of accounting from the deceased’s business to show his monthly or yearly income were produced in order to set a benchmark as to the deceased’s earnings. In that regard, I find the claim of TZS 150,000,000/= unproved and consequently disallow it. On the claim of TZS 100,000,00/= for loss of expectation of life. The same remains unproved as there is no scintilla of evidence on how the plaintiff arrived at that figure. Regarding the claim of TZS 40,000,000/= for the pain and suffering of 10 the deceased, apart from merely stating the figure, the plaintiff gave no details on how that figure was arrived at. There was no medical report tendered to prove the extent of pain suffered by the deceased given the fact that, the deceased died instantly on the scene of the accident. The despondency of her claim was further compounded by the fact that she led no evidence to prove the claimed amount. For that reason, it is my findings that the same has not been sufficiently established. On the claim of TZS 40,000,000= for loss of comfort and amenities, this was also not proved as no evidence was adduced by the plaintiff to prove the same. Concerning the claim of TZS 20,000,000/= for burial expenses which the plaintiff claims to have incurred, it was the evidence of PW1 that they spent TZS 20,000,000/= for the purchase of coffin, food and beverage, chairs, and transportation of the deceased body. However, PW1 did not tender any evidence apart from her verbals to prove the costs incurred. It is without doubt that during burial ceremonies people do eat, drink, sit, and travel from one point to another if there is a need to do so. Thus, 11 costs for buying food, renting chairs and tents as well as transportation are inevitable. However, since this was claimed under specific damages, it was incumbent on the plaintiff to strictly prove it. Since the plaintiff failed to discharge this duty, it goes without saying that the same was not proved to the required standard. In the event, I dismiss the claims of TZS 350,000,000/= for want of proof. On the other hand, the plaintiff prayed for general damages to the tune of TZS 50,000,000/=. General damages are damages that the law presumes to have resulted from the defendant’s tort or breach of contract. They are normally damages at large and can be nominal or substantial depending on the circumstances of each case. Bryan A. Garner, Black’s Law Dictionary, 8th Ed, (2004) at page 1174, defines the term general damages thus: ‘Damages that the law presumes follow from the type of wrong complained of; ... compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved. General damages do not need to be specifically claimed.’ (Emphasis added) 12 From the above definition, it is settled that general damages must be pleaded but not quantified. The reason behind that principle of the law is that the general damages need not be strictly proved but rather awarded at the Court’s discretion after considering the circumstances under which the plaintiff was subjected and the type or nature of the complained of tort or action. This position of the law was clearly stated by the Court of Appeal in the case of Peter Joseph Kibilika Vs. Patric Aloyce Mlingi, Civil Appeal No. 39 of 2009 (CAT-unreported). The Court quoted with approval the holding in the case of Admiralty Commissioners Vs. SS Susqehanna [1950] 1 ALL ER 392, to the following effect: ‘If the damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question.’ Further, in the case of Anthony Ngoo & Another Vs. Kitinda Maro, Civil Appeal No. 25/2014 (CAT-unreported) the Court held: ‘General damages are those presumed to be direct or probable consequences of the act complained of.’ In this matter, there is no dispute the plaintiff pleaded the claimed general damages, though she quantified it as TZS 50,000,000/=. 13 In trying to convince this court, PW1 informed the Court that her husband’s death subjected her to great pain and psychological injuries for being denied the right to enjoy life with him, loss of his support as bread earner and her failure to support her family satisfactorily particularly children’s education as by then they were in secondary school. On the adversary, during cross-examination, DW1 conceded that the deceased was survived by a widow and the dependant children. The learned counsel for the defendants in their submission challenged this claim arguing that the plaintiff neither proved the existence of six children who allegedly were dependent on the deceased nor mentioned even their names and how they were dependent on the deceased. They cited the case of Huba Hashim Kasim vs M/s Tonda Express Ltd and Others, Civil Case 75 of 2010 High Court of Tanzania at Dar es Salaam to cement their submission. It is undisputed that the 1st defendant’s reckless driving claimed the life of the late Octavian Edward Swai. It is also a common cause that losing a lovely couple and more importantly, a bread earner of the family is different from losing a property as properties do have actual values while 14 a person does not. Admittedly, no amount of money in the circumstances would suffice to indemnify or wipe off her tears. It is from that fact I am convinced that the amount of TZS 50,000,000/- claimed by the plaintiff as general damages would meet the ends of justice. This Court (Ebrahim, J) in the case of Huba Hashim Kasim Vs. M/s Tonda Express Ltd and Others (supra) made the following observations which I find instructive on the subject. ‘Indeed, one cannot definitely measure the anguish of a close member of the family in monetary value. However as stated earlier, the rationale is at least to act as a solitude for the anguish suffered. Thus, the ultimate determination is to be viewed with objectivity.’ In this case, I have considered the pain, mental anguish and psychological torture suffered by the plaintiff, her children, and the entire close family members in losing her husband, father, brother, uncle, and most significant bread earner which is not easily bearable. In the result, I find that the Plaintiff is entitled to compensation for the pain and mental anguish suffered to the extent she claimed as the award does not mean 15 replacement of her husband but rather meant to wipe off her tears. In view thereof, I grant the plaintiff a sum of TZS 50,000,000/= (Tanzania Shillings fifty million only) as general damages. All said and done judgment is entered in favour of the plaintiff as hereunder: 1. Both 2nd and 3rd defendants to pay the plaintiff TZS 50,000,000/= only as general damages. 2. The awarded amount to be charged interest at the court rate of 7% per annum from the date of judgment till full satisfaction of the decree. 3. The plaintiff shall also have her costs. It is so ordered. The right of appeal is explained. Dated at Dar es Salaam this 8th day of November 2024. A. A. MBAGWA JUDGE 08/11/2024 16 COURT: The judgment has been delivered at Dar es Salaam today on the 8th day of November 2024 in the presence of the plaintiff in person and Mr. Abeid Buzohera, learned State Attorney for the 2nd, 3rd and 4th defendant, and in the absence of the 1st defendant. A. A. MBAGWA JUDGE 08/11/2024 17