zanzibar insurance corporation vs nickson apolinary mtambirwa and another 2020 tzhc 4709 10 december 2020

IN THE HIGH COURT OF TANZANIA MWANZA DISTRICT REGISTRY e AT MWANZA CIVIL APPEAL No. 36 OF 2020 (Originating from the decision of the Court of Resident Magistrate for Mwanza at Mwanza in Civil Case No.12 of 2017) ZANZIBAR INSURANCE CORPORATION APPELLANT VERSUS NICKSON APOLINARY MTAMBIRWA 1 ST RESPONDENT JOSEPHAT NYAMHANGA . . . . . - - - - - - % % 6 6 3 6 3 6 6 6 3 6 6 6 6 6 3 6 6 3 6 6 . . 6 6. . 6 6 6 6 6 6 6 c c , , , , 2 P RESPONDENT RULING. 15 October & 10 December, 2020 TIGANGA, l Before the Court of Resident Magistrate for Mwanza, at Mwanza, in Civil Case No. 12 of 2017, Nickson Apolinary Mtambirwa, the 1 respondent sued the Josephat Nyamhanga and Zanzibar Insurance Corporation herein after the appellant and second respondent for the following orders; a) Payment of Tshs. 50,863,700/= being specific damages b) Payment of Tshs. 40,000,000/= being geneal damages c) Interest at the current commercial bank rate on the decretal amount from the date of the judgment until the full payment of the decretal amount d) Cost to be provided for e) Any other relief(s) this Honourable Court may deem fit to grant. 1 From the plaint, the cause of action which gave rise to the case before the trial and the appeal before this court was the road accident which involved tha motor vehicle with registration number T. 174 CUE, make Mitsubish bus Rosa which was owned by Joseph Nyamuhanga, the 2° respondent. The road accident occurred on 13/03/2014 at Tabaruka village at about 11.00 along Busisi road within Sengerema District where the unknown driver who was employed by the 2° respondent, drove carelessly and without consideration of other road users and knocked the motor vehicle carried the plaintiff and caused severe and permanent injuries to the 1 respondent. After the accident, the driver Mitsubishi bus Rosa ran away and the 2° respondent was arrested, prosecuted and found guilty of an offence of failure to keep record of the driver in Traffic Case No.12 of 2014. It was further pleaded in the plaint that the victim of that accident was seriously injured, his treatment and medication costed him Tshs. 2,674,500/= while Tshs. 657,000/ were spent for transportation. After treatment and recovery, he was left with some permanent disability which prompted him to sue for damages. The appellant was sued as an Insurance Company which insured the motor vehicle with registration No. T.174 CUE, Mitsubishi Rosa. After full trial, before the Court of Resident Magistrates, it was found and decreed that; be paid specific damage a total of which is Tshs. 20,181,500/= therefore judgment entered against the defendant. 2 Following that decision, the appellant was aggrieved, he appealed against the decision by filing a one grounded petition of appeal, as follows; " That the learned trial Magistrate erred in law and facts for delivering judgment and decree which are inconsistence" He prayed the appeal to be allowed, judgment and decree of the trial court dated on 27° day of June, 2018 in Civil Case No. 12 of 2017 to be set aside. The petition of appeal by the appellant was by Ms. Jenipher Donald Kahema, Advocate, but during hearing which was conducted Orally, Mr. Erick Mutta appeared representing the appellant, while the respondent was represented by Mr. Remigius Mainde learned Counsel. The second appellant did not appear therefore the appeal proceeded exparte against him. The respondent in the application raised four points of preliminary objection as follows; (i) That the appeal is incompetent and misconceived for being filed contrary to the law. (ii) That the honourable court is improperly moved for seeking remedy which is in appropriate, (iii) That the instant appeal is time barred, (iv) That the instant appeal has been overtaken by event. Hearing of the preliminary objection was orally. Submitting in support of the first point of preliminary objection Mr. Mainde submitted that the appeal is incompetent and misconceived for being filed without attaching it 3