IN THE HIGH COURT OF TANZANIA

DODOMA SUB - REGISTRY

AT DODOMA

CIVIL CASE NO. 02 OF 2022

BETWEEN

AJUAYE AINEA.......... .........................................PLAINTIFF

AND

OMBENI ELISALE...... ......................................1st DEFENDANT

GLOBAL RIC LIMITED ......................................2nd DEFENDANT

JUDGMENT

30th May, 2024

The story telling behind this case is that the plaintiff, one Ajuaye s/o

Ainea (PW1) was a motorcycle driver on the fateful day. He is a husband of

one wife and father of four children. And as of now, according to what he

reveals in the plaint, since 2015 after he sustained a severe injury caused by

road accident, his life has miserably changed due to health challenges.

Because of that, he has been going up and down

looking for redress from the damage he has encountered.

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 As for the case at hand, it has been alleged by witnesses that the

accident occurred on 28th April, 2015 at about ll:30hours. On the material

day, Mr. Ajuaye was on the road riding his motorcycle. He was in the

company of his beloved wife. At that time, his wife Rebecca Emmanuel

Sendeu was his only passenger and he was passing along the main road

heading from Dodoma to Morogoro. While passing across Kibaingwa area

within Kongwa District in Dodoma Region, he was hit by a lorry which was

coming from behind. The lorry had registration number T. 904 BWR,

adjoined with a trailer whose registration number is T. 199 BVP Volvo. The

lorry was driven by the 1st Defendant, one Ombeni Elisale.

As a result of the said accident, the plaintiff sustained serious injuries

and his motorcycle was severely damaged. In his efforts to look for

reparation, the plaintiff had struggled to seek compensation from the lorry

owner, one g lo b a l r i c lim ite d as well as an insurance company which

the lorry seems to have been insured with. However, all efforts end up in

vain. Now, before this court, Mr. Ajuaye Ainea raises his claim for damages,

which include:

a) TZS. 420, 000,000/-being the compensation for the

incapacitation caused by negligent driving, costs for the

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 medical treatment and transport through the entire

period o f attending medical, loss o f income resulted

from the accident as well as disturbance which

occurred out o f his expectation.

b) General damages to be assessed by the court.

c) Interest at the court's rate from the date o f the

judgment until satisfaction o f the decree.

d) TZS. 2,500,000/- as costs for purchasing a new

motorcycle following the damage o f motorcycle No. T

961 BNG T-better.

e) Costs o f the suit.

f) Any other relief the court may deem fit

At the hearing of this case, the Plaintiff was represented by Mr. George

Sing'uji, learned Advocate. On the other side, defendants were absent.

Efforts were made including publication to secure attendance of the

defendants to the trial, though it all went in vain. Thus, matter proceeded

with hearing ex-parte under Order VIII Rule 14 (1) of the Civil Procedure

Code, [Cap. 33 R.E. 2019].

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 Before commencement of hearing, the following issues for

determination of the parties' dispute were framed by the court to wit:

1. Whether the 1st defendant was in the cause o f employment o f the

2nd defendant during the time the cause o f action arose.

2. Whether the 1st defendant was reckless and or negligent in the

discharge o f his responsibilities.

3. Whether the accident occurred as a result o f the said negligence.

4. To what reliefs are the parties entitled to.

To prove his case, the plaintiff called upon two witnesses plus himself

to testify in his favour. These includes, F. 6460 PC ALFRED (PW1), a police

officer and Thobias Michael Bundala (PW2), who is a human being

doctor.

F. 6460 PC ALFRED (PW1), a police officer who in his evidence, he

averred that, during the time when the accident occurred, he was working

at Dodoma Central Police station. And that, he was an investigator of the

traffic case which involved the plaintiff and the 1st defendant. He further

testified that; he knows Ajuaye Ainea as a victim of road accident. And that,

on 28/04/2015 there was a road accident which involved a lorry and a

motorcycle. The lorry collided with a motorcycle and caused injury to the

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motorcycle driver and damage of motorcycle. He added that, the accident

occurred at Kibaigwa village within Kongwa District in Dodoma region.

Testifying on his role to the accident, PW2 testified that when the

accident occurred, he was a police officer who worked in the traffic section.

And that, he was a constable by rank. He further went on to explain that,

with respect to the said accident, he visited a scene of accident and

thereafter drew a sketch map of which, he identified before the court by his

force number, F. 6460 PC ALFRED; the lorry number T. 904 BWR; and its

trailer number T. 199 BVP Volvo. It also has a motorcycle number T. 961

BNQ T-Better. Therefore, at the end, he tendered a sketch map which was

admitted by the court and marked as exhibit PEI.

Testifying about victim, PW1 testified to have issued a PF3 to the

injured motorcycle's driver. He further attested by identifying the said PF3

that it has victim's names, that is Ajuaye Ainea, and police stamp. He then

tendered the PF3 which was admitted in evidence and marked as PE2. He

stressed further that, PF3 was issued because of the injuries sustained to

the plaintiff from the said accident.

Moreover, PW1 stated that, to proceed with investigation, he

contacted a vehicle inspector for inspection of the lorry. And after inspection,

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police form No. 93 (PF. 93) was issued. PW1 identified an inspection report

through the lorry number T. 904 BWR Volvo, driver's name (1st defendant)

which is Ombeni Elisale, inspector's name which is Witson Baitain, and a

stamp from vehicle inspection's office. The vehicle inspection report was

admitted in evidence and marked exhibit PE3.

Likewise, PW1 averred to have prepared a first information report (PF.

90) of which, was admitted in evidence as exhibit PE4. The said report

contains among others, his name as investigator, the name of vehicle

inspector and a signature of District Traffic Officer Kongwa. Thereafter, PW1

prepared a charge sheet for prosecution of the lorry's driver (1st defendant).

The charge sheet contains the accused's name, a lorry and motorcycle

registration numbers and the name of the victim Ajuaye Ainea. PW1 went

on to testify further that after successful prosecution, the 1st defendant was

convicted. He identified a certified copy of the judgment by its case number

which is TC. NO. 9 of 2015, parties' names and the date of judgment. Thus,

a copy of judgment was admitted in evidence as exhibit PE5.

PW1 continued to testify that, during that time, from the date of

accident, the plaintiff Ajuaye Ainea continued to undergo medical treatment.

He further testified that, at the end, after judgment was pronounced, he

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prepared a final case report (PF. 115) which was also admitted in evidence

as PE6. Additionally, PW1 admitted that he understood the 1st defendant via

his driver's license. Further to that, he identified the 1st defendant's driver's

license which was admitted as exhibit PE7.

Furthermore, PW1 admitted that he understands a company called

Global Ric Limited via the lorry registration card. He explained further that

the lorry had two registration numbers, that are, one for the lorry and

another one for the trailer. The vehicle registration card as well as trailer

registration card were admitted in evidence and marked as exhibit PE8 and

PE9 respectively.

There is again the testimony of Thobias Michael Bundala (PW2),

who is a human being doctor. He averred that he has more than 25 years

experience in his duty as a human being doctor. PW2 testified to have

understood one Ajuaye s/o Ainea that he was his patient. And that, he had

attended him for treatment since 2015. He went on to testify that, it was on

29/04/2015 when the plaintiff first approached him with PF3 which was

admitted in evidence as exhibit PE2. And that, together with doctor Ibence

who then filled the said PF3, they have attended the plaintiff. PW2 further

identified the said PF3 by the name of the plaintiff who was a patient and
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stamp of hospital. He further testified that; on that date he was a doctor on

duty.

Explaining on the PF3, he testified that PF3 is normally filled on the

date a patient arrives in the hospital or after he receives treatment and

allowed to leave. He also testified that; he is working at Dodoma referral

hospital where the plaintiff was treated. He continued to testify that, after

examination of the patient, they observed that the plaintiff had sustained

some injuries. That is, he broke his right foot to the extent that he could not

use his leg. And that, the plaintiff was admitted for two months in order to

receive treatment.

Besides, PW2 added that they discharged the plaintiff at hospital upon

condition that, he should attend after every month for check up because his

bone was not properly connected. He went on testifying that, coming on

2020, the plaintiff approached the hospital asking for medical report. PW2

identified the medical report by the plaintiff's name, his name, that is

Thobias, stamp and his signature. The medical report with reference No.

BG.90/132.02/29 was admitted as exhibit PE10. In conclusion, PW2 testified

that since the plaintiff's bone was broken, the bone is still not properly

connected and that will have great effect to his body.

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 And finally, the testimony of Ajuaye Elisale (PW3), who is the plaintiff

in this case. Under oath, PW3 testified that, on 28/04/2015 he was involved

in the road accident. That is, he was hit by vehicle with registration number

T. 904 BWR which was connected with trailer No. T. 199 BVP Volvo. And

that, the accident occurred at Kibaigwa main road heading from Dodoma to

Morogoro and the lorry hit him from behind. PW3 testified further that, he

was riding his motorcycle which has registration No. T. 961 BNG T-better.

And that, he was heading to the same direction with the lorry, that is, the

lorry was behind him. He had one passenger Rebecca Emmanuel Sendeu

who is his beloved wife.

Testifying on the cause of accident, PW3 explained that, the cause of

accident is negligence driving of the lorry's driver. He further testified, that

the lorry is owned by one, Global Ric Limited. He added that, he came to

know the lorry's owner is Global Ric Limited because of its registration cards

which bears its name. PW3 further identified a lorry card which was then

admitted in evidence as exhibit PE8 (lorry registration card) and PE9 (trailer

registration card) respectively.

PW3 continued to testify that he has his motorcycle registration card's

which he can identified by its motorcycle registration No. T. 961 BNG. The

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registration card bears the name of Merodine Company. He justified the card

name that, he bought the said motorcycle from another person with that

name, and ever since, he had not changed that name. PW3 also mentioned

a lorry driver by the name of Ombeni Elisale as it appears in his driver's

licence which was admitted in evidence as exhibit PE7. He further testified

that after accident, he went to the police station to take PF3. He identified

the said PF3 (exhibit PE2) by having his name and the name of the police

station which it was issued, that is Kibaigwa Police Station.

Moreover, PW3 testified further that after accident, he was admitted

at hospital for two months. And after he was discharged, he was instructed

to report for checking after every month. Following the doctor's instruction,

he attended checking schedule at Dodoma General Hospital from 2015 to

2020. And that, all the time through, he was treated by Doctor Thomas

Bundala and Doctor Ibenze Ernest. Further to that, PW3 identified the

medical report which was earlier on admitted in evidence as exhibit PE10.

Going further, PW3 testified that after accident, a lorry driver was

prosecuted for the road traffic offences, and he was convicted for the same.

He identified a copy of the judgment (exhibit PE5) and preferred the same

to be part of his evidence. PW3 went on to testify that he has not been

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supported financially by neither the lorry driver nor the owner. Adding to

that, he said, an accident has caused to him a permanent headache, and leg

damage as a result of bone displacement. He further said that, the accident

has caused him a serious damage to his normal work. That is, as a peasant

who normally cultivates a sunflower and groundnuts, he used to earn around

80 bags annually. He explained further that, because of the damage he

sustained from accident, at meantime, he cannot afford to manage his

family. To show the extent of his family, PW3 testified to have four (4)

children namely; Ombeni Ajuaye, Hilda Ajuaye, Matha Ajuaye and Ainea

Ajuaye. To attest that, he tendered birth certificates for all four children

which were collectively admitted in evidence as exhibit PE11.

With respect to the insurance status of the lorry, PW3 testified that he

did not benefit from insurance cover. He went on that, during the accident,

the lorry seemed to have had an insurance cover. He attested that he was

given a copy of that insurance cover from police station. Thus, PW3 identified

an insurance cover from Reliance Insurance Co. Ltd which bears the insured

name of Global Ric Limited. He further testified that, it seems the insurance

cover was issued on 20/11/2014 and it was supposed to expire on

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19/11/2015. The insurance cover was accordingly admitted in evidence as

exhibit PE 12.

Looking for redress, PW3 testified further that, he made the follow up

at Reliance Insurance Co. Ltd for compensation but they refused to pay any

compensation. And, instead, they directed him to send his claim to the

vehicle owner.

He further testified that, in his undertaking to claim for compensation,

he had issued a demand notice which he issued to the Reliance Insurance

Company Limited through his advocate NNKO & ATTORNEY CHAMBER. He

also issued another demand notice to the vehicle owner through his advocate

PAA PURITY ATTORNEY & ASSOCIATE which was received by the company

Director Mr. Salim. The said demand notices were collectively admitted in

evidence as exhibit PE 13. Moreover, PW3 testified that, in spite of the

demand notice, the vehicle owner refused to pay the demanded

compensation in writing vide a letter which was then admitted as exhibit PE

14.

PW3 attested more that, after all effort to seek for compensation went

in vain, he then applied for leave for extension of time to file a suit to the

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Minister of Constitution and Legal Affairs of which he was granted. The order

was admitted in evidence as exhibit PE 15. Moving forward with his claim,

PW3 testified that he did not include Reliance Insurance Co. Ltd in the case

because it is in the mandate of the 2nd defendant to join his insurance

company in the suit.

Consequent to the accident, and accumulated damage thereof, the

plaintiff prays the court for order of compensation against the 2nddefendant,

Global Ric Limited as follows:

i. Compensation of TZS 420,000,000/= for permanent disability

caused in the accident.

ii. Payment for treatment and transportation from 2015 to 2020

in the tune of TZS 4,800,000/= which he justified vide taxi

receipts from Kibaigwa to Dodoma General Hospital. The said

receipts were admitted in evidence as PE 16.

iii. Payment of 2,500,000/= for repair of motorcycle which

remain unrepaired since then.

iv. Payment of any other relief which this court may think fit to

award.

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 This marked the end of the Plaintiff's case. And thereafter, through his

counsel the Plaintiff filed final written submissions of which, I am not

prepared to reproduce as I will be making reference in the course of

determination of the framed issues.

Now, having gone through the evidence, exhibits tendered and the

Plaintiff's final submissions, this court is now enjoined to address and

determine the four issues earlier on framed by the court. However, for the

easy reference of the legal position, first and for most, I wish to imitate the

laws relevant to the matter at hand. For instance, provision of section 42 of

the Road Traffic Act, Cap. 168 [R.E. 2002] stipulates what reckless driving

includes:

"The driving a motor vehicle or trailer at a speed which,

having regard to all the circumstances o f the case, is or

might be dangerous to the public or to any person or

drives a motor vehicle or trailer in a manner which, having

regard to all the circumstances o f the case, is or might be

dangerous to the public or to any person."

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See also persuasive decision in Sam v. Atkins [2005] EWCA Civ 1452 as

per May L.J he states:

"The assessment o f whether the Defendant's driving fell

below the requisite standard cannot be conducted in a

vacuum; it must be done by reference to the actual

circumstances o f the actual collision against which the

standard is to be judged."

Further to that, with respect to assessment of remedy by the court, it has

been marked in Zuberi Augustino Vs. Anicet Mugabe, (1992) TLR 137

that:

"It is trite law, and we need not cite any authority, that

special damages must be specifically pleaded and

proved. "(Emphasis supplied)

That said, in analysing the first issue, that is whether or not the 1st

defendant was in the cause of employment of the 2nd defendant during the

time the cause of action arose. The issue has been proved by the evidence

of PW1 and PW3 (the plaintiff). In their evidence they have clearly proved

that the 1st defendant was in the course of employment of the 2nd defendant

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during the time when the cause of action arose. On that effect, PW1 has

testified that when the accident occurred, the 1st defendant was a driver of

the vehicle whose registration number is T. 904 BWR/ T. 199 BVP Volvo

which had caused the accident which resulted into injury of PW3 and damage

to his motorcycle. His evidence about the lorry which caused the accident

and damage the plaintiff's motorcycle was also corroborated by the

testimony of PW2 who treated the plaintiff at General Hospital. To cement

his evidence, PW1 tendered a driving licence of the 1st defendant (exhibit

PE7). PW1 testified further that the 1st defendant was prosecuted for the

offence of reckless driving vide Traffic Case No. 9/2015 and he entered own

plea of guilty to the charge. To prove this assertion, he tendered a certified

copy of judgment which was admitted as exhibit PE5. Additionally, PW1

testified further that the motor vehicle which hit PW3 has registration card

(exhibits PE8 and PE9) which shows that, the owner of the vehicle was

GLOBAL RIC LIMITED who is the 2nd defendant. At this far, as to the

submission fronted by the plaintiff's counsel, I am in full support of his

analysis and plus an attached authority. See for instance, in the case of Mrs.

Huba Hashim Kasim v. M/S Ton Da Express Ltd & 2 Others, Civil

Case No. 75 Of 2010 (Unreported) at Dar es Salaam. In my considered

16
view at this juncture, I will make reference in Launchbury v. Morgans

[1973] AC 127, where plaintiff had authorised his friend to drove him home

and later, they got accident on the way. Reflecting on the circumstance, the

House of Lords had this to say:

"To fix vicarious liability on the owner o f a motor car in a

case such as the present, it must be shown that the driver

was using it for the owner's purposes under delegation o f

a task or duty."

That being so, based on the evidence in disposal, as of PW1 and PW3

with respect to the ownership of the lorry, it was well testified that the lorry

is owned by GLOBAL RIC LIMITED as per registration card (exhibits PE8 and

PE9). In my judgment based on the evidence adduced, it is impossible to

hold that the principle of vicarious liability was not proved. Since the lorry

was owned by a company, it was obvious that the 1st defendant was acting

upon delegation of a task or duty of the 2nd defendant either as an agent or

employee. Thus, in circumstance, the 2nd defendant cannot side-step his

vicarious responsibility. For this reason, I hold the first issue proved in

affirmative.

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 Moving forward to the 2nd issue that whether the 1st defendant was

reckless and or negligence in the discharge of his responsibilities. To canvass

on this issue, I will be guided by the principles emanated by Vivienne

Harpwood, in the book of Principles in Tort Law, 4th Edition, Cavendish

Publishing Limited, 2000 at page 24, on proof of action of negligence stated

thus:

"...it is now weii established that, in order to succeed in

an action for negligence, the claimant must prove each o f

three elements: first, that a legal duty o f care is owed to

him or her by the defendant; secondly, a breach o f that

duty; thirdly, a causative link between the breach o f duty

and the injury or loss."

Therefore, to prove this issue, PW1 presented that the 1st defendant

was prosecuted for the offence of reckless or negligence driving and he was

convicted upon his own plea of guilty. To cement that assertion, PW1

tendered a copy of judgment (exhibit PE5) to strengthen his attestation.

Thus, I am alive, that it is now settled principle provided under section 43A

of the Evidence Act, Cap. 6 [R. E. 2019] thus, the criminal Judgment which

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has never been challenged, is relevant to Civil Case. Section 43A of the Act

reads as follows:

"43A. A final judgment o f a court in any criminal

proceedings shah\ after the expiry o f the time limit for an

appeal against that judgment or after the date o f the

decision o f an appeal in those proceedings, whichever is

the later, be taken as conclusive evidence that the person

convicted or acquitted was guilty or innocent o f the

offence to which the judgment relates."

As rightly referred by plaintiff's counsel in his final submission, See also

decision in Grace Joseph Zeramula (being the plaintiff ans

administratrix of the estate of the late Paul Kato Zeramula) v. Felix

John Fasi & 2 Others, Civil Case No. 201 of 2018 (unreported) Dar es

Salaam of which I am fully subscribed to, the court states:

so find as the 1st defendant in exhibit P4 was

convicted o f the offence o f causing death through careless

driving o f the motor vehicle, the conviction which was

never challenged as that criminaljudgment is relevant to

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 this civil case as provided under section 43A o f the

Evidence Act, [Cap. 6 R. E. 2019]."

Furthermore, to prove the reckless and or negligence conduct of the

1st defendant, PW1 proceeded to testify on how he was involved during

investigation of the traffic case which is associated with this claim. On that

he averred to have drawn the sketch map of the scene of accident, and

fetching the vehicle inspector for inspection of the lorry. To bolster his

evidence, he tendered exhibits PEI the sketch map, PE2 Police Form No. 3

(PF3), PE3 Police Inspection Report, PE4 First Information Report and PE6

Final Case Report which confirmed that, the 1st defendant was reckless and,

or negligence in the discharge of his responsibility.

Additionally, PW3 also testified on the point that, on 28/04/2015 he

was involved in the road accident. That is, he was hit by vehicle with

registration number T. 904 BWR connected with trailer whose registration

No. T. 199 BVP Volvo. Tthe accident occurred at Kibaigwa main road going

from Dodoma to Morogoro, and the lorry hit him from behind while he was

driving his motorcycle in the same direction as that of the lorry.

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 In view of the above, and judging from the state of affairs, it is palpable

that the standard of care is that of the reasonably careful driver, armed with

common sense and experience of the way pedestrians and particularly other

frequent users of the road are likely to behave. In the circumstance thereof,

the drivers must always bear in mind that a motorcar is potentially a

dangerous weapon and thus, ought to take all reasonable care to avoid

damage on the road against other users. See Lunt v. Khelifa [2002] EWCA

Civ 801.

Now looking on the instant case, since the 1st defendant was driving

and hit the plaintiff's motorcycle from behind, it is therefore the finding of

this court that, the accident was caused by the 1st defendant's reckless and

negligent driving. In the circumstance, as a reasonable driver, he was

supposed to foresee the danger emanating ahead of him and side-stepped.

That means, failure to do so, the standard which can be used to measure as

to whether the driver was reckless or otherwise, as traced in Vivienne

Harpwood's book (supra), stand ticked. Thus, with these findings the second

issue that the accident occurred as a result of reckless or negligence driving

is answered positively.

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 On the 3rd issue as to whether the accident occurred as a result of the

said negligence. PW1 submitted that, exhibit PEI (sketch map of the scene

of accident) has established that the accident was a result of careless and

negligence driving of the 1st defendant. More so, PW1 paved that the 1st

defendant has himself admitted to the charge of reckless and or negligence

driving by his own plea of guilty (exhibit PE5).

Based on this evidence, at this point, it is not possible to contrast with

the submission canvassed by the plaintiff's counsel of which, he held in

favour of the plaintiff. In the similar way, I subscribe to the decision referred

by the him in of Grace Joseph Zeramula (being the plaintiff and

administratrix of the estate of the late Paul Kato) (supra). In the

end, in my judgment, on the evidence adduced by plaintiff's witnesses, this

issue is affirmatively proved.

Coming into the last issue as to what reliefs parties are entitled. Thus,

plaintiff has claimed for both special and general damages. His claims

appeared in paragraphs 19 and particularised in the prayer clause of the

Plaint. To find as to whether the said claims has been strictly proved, I find

it imperative to examine one after another.

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 In the circumstance, to start with, I am alive that the starting point

into the measure of damages which an injured plaintiff is entitled to recover

is the recognition that damages in the tort are purely compensatory. Thus,

the plaintiff should recover from the tortfeasor no more and no less than

what he has lost. In our jurisdiction, when it comes to special damages the

position is as in the case of Reliance Insurance Company (T) LTD &

Others v. Festo Mgomapayo, Civil Appeal No. 23 of 2019 TZCA

(unreported) where the court held:

'The law in specific damages is settled, the said damages

must be specifically pleaded and strictly proved..."

(Emphasis supplied).

Therefore, in the effort to prove the damage which the plaintiff

incurred, PW3 testified that as a result of the said accident he sustained a

severe injury of which, led him to suffer financial damages in the tune of TZS

4,800,000/=. Itemising the costs he incurred, PW3 testified that this cost

includes, payment for treatment and payment for transportation fare from

Kibaigwa where he was living to Dodoma General Hospital from the year

2015 to 2020 when he was following treatment after accident.

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 In this aspect, to strengthens his claim, he tendered taxi receipts to

prove transportation entitlement that he demanded. The receipts were

collectively admitted in evidence as exhibit PE 16. In my endeavour, going

through the evidence of PW1 and PW2 including the said receipts (exhibit

PE 16), and medical report (exhibit PE10), I am satisfied that the special

damages of the said amount as claim for transportation has been strictly

proved and the same is hereby awarded.

With respect to the claim for compensation of TZS 420,000,000=

resulting from permanent disability caused to the plaintiff in the cause of

accident. PW2 testified that as a result of the said accident, he had sustained

a serious injury which led to his permanent disability. His evidence with

respect to disability suffered was corroborated by the testimony of PW2, a

human doctor who diagnosed the plaintiff, who in the end tendered a

medical report (exhibit PE10) to cement his attestation.

However, as a special damage, there is no evidence adduced which

prove that the plaintiff had suffered a permanent disability that is worth the

amount claimed. At this juncture, guided with the position of the law in

Reliance Insurance Company (T) LTD & Others v. Festo Mgomapayo

(supra), I find it difficult to believe that the said suffering has justified the

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payment of Tsh. 420,000,000/= as specific damages. The reason for such

disbelief is that, special damages involve the real costs incurred by the

Plaintiff of which, for it to be compensated, there must be a strict proof of

the same. For instance, in Alfred Fundi v. Geled Mango & Others, Civil

Appeal No.49 Of 2017 (Unreported), the Court of Appeal had dismissed the

appeal on the facts that, the appellant did not produce any documentary

evidence to substantiate and justify the claim. The Court of Appeal was of

the finding that, without any supporting documents tendered that the

appellant incurred specific costs there was no verifiable evidence to prove

that the appellant incurred costs.

That said, in this case, nothing targetable was presented in evidence

to justify the claims. To say the least, I am aware that the Plaintiff tendered

some documents to support his claims which included the Birth Certificates

for his four children, (Exhibit PE. 11) and the rest were a mere claim coming

from plaintiff's words of mouth without having any documentary proof

thereof. In such a case, since claim of specific damages involves payment of

real costs incurred by the Plaintiff for the permanent disability alleged, I

find those certificates have not proved special damages to a tune of Tzs.

420,000,000/= as pleaded by the Plaintiff or any other amount due.

25
Therefore, plaintiff has failed to prove his clam, and thus, this relief is also

rejected.

Reflecting on the damage caused to his motorcycle. The Plaintiff

testified that because of the accident, his motorcycle was extremely

damaged and it cannot move or be used. To that effect, evidence of PW3

was corroborated by the evidence of PW1, a Police Officer who tendered

exhibit PE.5. At this point, PW3 claims Payment of 2,500,000/= for repair of

his motorcycle which he averred to remain unrepaired since then.

Going through the evidence, the basic question to ascertain here is,

whether the sum claimed by the plaintiff is justified. In my view, looking on

the evidence adduced, there is nothing which can prove the claimed cost. I

am again alive that, in his oral testimony, PW3 testified for the damage

caused to his motorcycle. However, he did not tender any documentary

proof, say it, for instance, an evaluation report which show the estimated

costs for repair, of which, the amount claimed can be justified.

On that note, in my view and owing to the nature of accident as

revealed by means of exhibits PE.4 and PE.5, yet, the amount claimed is

26
unfounded. That being the case, I hold the claim in negative and it is

rejected.

The last in the chain of claims is general damages. On the other hand,

the plaintiff has claimed for general damages of which he left the court to

quantify. In this aspect, the law is settled that General Damages are awarded

by the trial Judge after consideration and deliberation of the evidence on

record has able to justify the award. In Black's Law Dictionary, 8th Ed, (2004)

at page 1174, general damages is defined as follows:

"Damages that the law presumes follow from the type o f

wrong complained o f 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."

From the above meaning, it is well settled that general damages must

be pleaded but not necessarily quantified. The Judge has discretion in

awarding general damages although, he has to dispense reasons in awarding

it. This principle was surfaced by the court of appeal in the case of Peter

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Joseph Kibilika v. Patric Aloyce Mlingi, Civil Appeal No. 39 of 2009 (CAT-

unreported) when quoting the case of Admicibility Commissioners v. Ss

Susqehanna [1950] 1 ALL ER 392, that:

"If the damages be general, then it must be averred that

such damage has been suffered, but the quantification o f

such damage is a jury question."

It was also stated in the case of Anthony Ngoo & Another v. Kitinda

Maro, Civil Appeal No. 25/2014 (CAT - unreported) that:

"Genera/ damages are those presumed to be direct or

probable consequences o f the act complained of."

At this point, to prove whether the plaintiff is entitled for general damages.

I find that the Plaintiff is entitled to compensation for general damages. The

reason for my judgment is that, if we can refer from the evidence of PW3,

he testified that due to this accident he has sustained injury which led to his

permanent disability.

In his testimony, PW3 testified that he has not been supported

financially by neither the lorry driver nor the owner. Attesting to the extent

of injury, PW3 averred that the accident has caused him a permanent

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headache and leg damage as a result of bone displacement. His evidence

was corroborated by the evidence of PW2, a human doctor who treated the

plaintiff while he was admitted at the hospital and even after his discharge.

In brief, explaining the patient's condition, PW2 testified that as a result of

accident the plaintiff had broken his right foot to the extent that he could

not use his leg. And that, the plaintiff was admitted for two months in order

to receive treatment. And after he was discharged, he was consulted to

attend hospital for check up monthly because his bone was not properly

connected. To cement his evidence, PW2 tendered a PF3 (exhibit PE. 2) and

the medical report with reference No. BG.90/132.02/29 (exhibit PE 10).

Further to that, PW3 whispered that, this accident has caused him a

serious damage to his normal work. To that effect, as a peasant who

normally cultivate sunflower and groundnuts, of which he used to earn

around 80 bags annually which was enough to run his family, he now

because of the damage he sustained from accident, cannot afford to manage

his family. To show the scope of his family, PW3 testified to have four (4)

children namely; Ombeni Ajuaye, Hilda Ajuaye, Martha Ajuaye and Ainea

Ajuaye. To attest that, he tendered birth certificates for all four children

which were then collectively admitted in evidence as exhibit PE 11.

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 In my view, owing to the circumstance at hand, I can see no fault to

grant award to the plaintiff based on his attended treatment, future cost of

care to his family as well as to his future loss of earnings. As rightly submitted

by plaintiff's counsel refuge be taken in the case of Leonard Paul Kisenha

v. Kilimanjaro Truck Company Ltd & 2 Others, Civil Case No. 47 of

2022 (unreported) at Dar es Salaam, which at page 23 and 24, the court

states:

"Indeed, one cannot definitely measure the anguish o f a

dose member o f 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."

On the other hand, PW3 testified that because of this accident his

motorcycle was damaged and thus, it remains unrepaired since then.

Although, PW3 failed to provide a quantified estimate of the damage which

could have allowed him to seek special damages, the fact that it was

damaged and it is still unrepaired deserves consideration of the court.

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 Now, after all facts have been considered and evidence analysed this

court find the award of TZS. 150,000,000/= (Tanzania Shillings one hundred

and fifty million only) as general damages would meet the end of Justice. In

the making of these awards, I am alive that assessment of damages is not

and never can be an exact science, it is clear that there can be too many

imponderables. But looking on the factual circumstance of this case in

totality, the amount awarded is justified in my view. See for instance in A.

S. Sajani v. CRDB (1991) TLR 44, where the principle restitutio in integrum

was promulgated.

All said and done, at the end the judgment is entered in favour of the

plaintiff as hereunder:

1. The 1st and 2nd Defendants shall jointly and severally pay the

Plaintiff TZS. 4, 800, 000/= as transportation fare from Kibaigwa to

Dodoma Regional Hospital from 2015 to 2020.

2. The 1st and 2nd Defendants shall jointly and severally pay the

Plaintiff TZS. 150, 000, 000/= as general damages.

3. The Plaintiff shall also have his case costs from the Defendants

accordingly.

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It is so ordered.

DATED at DODOMA this 30th day of May, 2024.

Judgment delivered this 30thday of May, 2024 in the presence of the plaintiff

and his advocate and in absence of both Defendnats.

JUDGE
30/ 05/2024

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