CARITAS TANZANIA AND ANOTHER v STUWARD MKWAWA 1996 TLR 239 (HC)

 

CARITAS TANZANIA AND ANOTHER v STUWARD MKWAWA 1996 TLR 239 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Bubeshi J

B

CIVIL APPEAL NO 21 OF 1994

1 August, 1995

Flynote

Civil Practice and Procedure - Service of summons - Defendant's refusal to

acknowledge service C - Procedure to be followed by plaintiff for judgment - Order

9 rule 6(1)(a)(ii)(B) and Order 8 rule 14(2)(b) of the Civil Procedure Code, 1966.

Civl Practice and Procedure - Written judgment - Requisite content of such judgment

- Order 20 rules 4 and 5 of the Civil Procedure Code, 1966. D

Damages - Quantum of - Ex-parte proof by affidavit - Extent of court's duty to

scrutinize the evidence on affidavit to arrive at acceptable quantum. E

-Headnote

On 1 January 1993, the Second Appellant, who is an employee of the First Appellant,

collided with the Respondent's vehicle. Upon the Respondent filing suit against the

Appellants, the latter refused service of the summons. The trial Magistrate

subsequently allowed the Respondent to file an affidavit for ex-parte proof of damages

and judgment. F The magistrate then awarded the Respondent Shs 550,000/=,

representing the repair costs of the Respondent's vehicle, as well as Shs 8,640,000/= as

compensation for loss of use of the vehicle.

The Appellants appealed to this Court by challenging the validity of the trial court's

judgment and contending, firstly, that it was not a proper judgment for failure to

contain G `a concise statement of the case, the points for determination, the decision

thereon, and the reasons for such decision'; and secondly, that the amounts awarded

on both heads of damage were unrealistic.

Held:

(i) Order 8 rule 14(2)(b) requires a plaintiff to apply formally to court for

permission H to proceed with ex parte proof of damages allegedly suffered; and the

Respondent in casu failed to comply with this requirement in the court below.

(ii) Although Rules 4 and 5 of Order 20 of the Civil Procedure Code

require judgments to contain a concise statement of the case, the points for I

determination, the decision arrived at and the reasons for such decision, the content

of each judgment depends upon the parti-

1996 TLR p240

A cular case and there is thus no specific format as to how a judgment

should be presented.

(iii) Affidavits, like any other piece of evidence, must be analysed and

evaluated by the court even when unchallenged; and the court's scrutiny thereof is all

the more important in cases where pecuniary compensation is claimed. In casu, B

the filed affidavit was not proof of the loss alleged since there was no evidence before

the court as to how the relevant figures had been arrived at.

(iv) The appeal is allowed with costs, to the extent that the case is remitted

to another magistrate who is instructed to admit further evidence.

Case Information

Ordered accordingly. C

Cases referred to:

1. Transport Equipment Limited v D P Valambhia Civil Case No 210 of

1989 (unreported)

Kapinga, for the appellants. D

Mutaitima, for the respondent.

[zJDz]Judgment

Bubeshi J:

The appellants in this case are Caritas Tanzania and Natal Fidelis who is an employee

E of the first appellant. Both appellants are aggrieved by the decision of the trial

magistrate wherein on 3 February 1994 an ex-parte judgment was entered against

them in favour of the respondent one Stuward Mkwawa who had his vehicle

damaged by the second appellant whilst driving the vehicle belonging to the first

appellant. The trial magistrate F awarded the respondent:

-- Shs 550,000/= as costs of repair to his vehicle

-- Compensation for loss of use of the tune of Shs 8,640,000/=.

The facts of this case briefly stated are that the plaintiff, now respondent, filed a suit

against the defendants, now appellants, claiming Shs 550,000/= as costs of repair to his

G damaged vehicle and Shs 8,640,000/= being loss of use when the respondent

vehicle stayed idle after the accident. It is not in dispute that the respondent's vehicle

was damaged by the second appellant on 1 January 1993. Liability was admitted but

since H the appellants did not respond to the respondent's claim, the latter decided

to take the matter to court. The case was assigned for mention on 16 December 1993

and when the summons for disposal of suit was served on the appellants, the latter

refused to be served. The trial magistrate then allowed the respondent to file an

affidavit for experts I proof and subsequently judgment was entered in favour of the

respondent as prayed. It may be pertinent to mention here that as the appellants

1996 TLR p241

BUBESHI J

had refused to be served on 14 December 1993, the subsequent events took place A

without their being aware.

Mr Kapinga learned counsel for the appellants has filed four grounds of appeal against

the judgment of the trial magistrate. There are: B

(a) that the learned trial magistrate erred for failing to write a judgment.

(b) in the alternative to (a) above that the learned magistrate erred in law

and in fact in awarding the respondent the sum of Shs 550,000/= as costs of repair C

(c) that the award of compensation in the sum of Shs 8,640,000/= to the

respondent for loss of use of the motor vehicle was unreasonable and was not

supported by evidence.

(d) that the damage caused to the respondents vehicle ie rear left gate

dented, left D gate window glass broken and rear bumber bent could not prevent the

respondents vehicle from operations nor could it, in the ordinary course of business

take ten months to repair.

--that the learned magistrate failed to take into account the principle of mitigation of

E damages.

In his submission Mr Kapinga went on to elaborate on the grounds. Mr Kapinga

learned counsel attacked the `judgment' of the trial magistrate in that it was not a

proper F judgment as required by Order 20 Rules 3 and 4 of the Civil Procedure

Code 1966. The judgment of the trial magistrate read:

`Order: Upon filing the ex-parte affidavit, judgment is entered in favour of

plaintiff as prayed.' G

Mr Kapinga submitted before this court that what was written by the trial magistrate

was not a proper judgment. That Order 20 Rules 3 and 4 makes it mandatory that a

judgment must be written and shall contain `a concise Statement of the case, the

points for H determination, the decision thereon and the reasons for such decision'.

That the trial magistrate failed to write a judgment and therefore even the decree that

followed could not agree with the judgment as there was none trial since there is no

judgment then there could be no decree. Mr Kapinga urged the court to allow the

appeal on this ground with alone costs. I

Without prejudice to the foregoing, should the Court hold that

1996 TLR p242

BUBESHI J

there is an appealable judgment and decree, Mr Kapinga submitted that there was no

A proof that the respondent expended the sum of Shs 550,000/= on repairs. There

was no receipt tendered by the respondent. According to Mr Kapinga, the trial

magistrate should have deducted the sum of Shs 180,000/= as there was no proof of

panel beating and B spraying' to the tune of Shs 180,000/=. This sum ought to have

been deducted from the total sum claimed.

On the issue of the loss of use Mr Kapinga learned counsel is challenging the figure of

Shs 8,640,000/= as being unrealistic. That the date of the repair to the vehicle is not C

known although annexure `C' (an invoice of Sanbern Engineering Services Limited)

would suggest that the repairs were probably done on 15 July 1993 some 194 days

after the accident. Mr Kapinga was of the view that the time spent to repair the

vehicle was unreasonably long considering the nature of the damage to the vehicle.

According to Mr Kapinga a reasonable period would not exceed two weeks.

Furthermore it was Mr D Kapinga's contention that the respondent's vehicle could

not have been operational for all the 280 days and made 40 trips daily without

interruption. This is not feasible in practice and the trial magistrate did not take that

into account. That it was necessary for E the respondent to support his claim of loss

of use by produce some evidence of operations prior to the accident so as to indicate

the trend of his income from operations of the vehicle.

That the award of Shs 8,640,000/= was speculative and not supported by evidence,

urgued Mr Kapinga for the appellants. In addition, Mr Kapinga submitted that going

by the F vehicle inspection Report annexure `A' to the affidavit not be prevented

from being operational or take 10 months to repair. The damage described in the said

inspection report read as follows:

`after accident

G Rear lift gate dented; Lift gate window glass broken; Rear bumper bent'

Finally Mr Kapinga submitted that the respondent had a legal duty to mitigate the loss

after the accident. That if the vehicle was damaged on 1 January 1993, the respondent

H should have taken immediate steps to repair his vehicle and repair it within two

weeks at the most and not ten months.

Armed with all this, learned counsel for the appellants asked the court to allow the

appeal with costs. I

Appearing for the respondent Mr Mutaitima from Tanzania Legal Corporation replied

as follows.

1996 TLR p243

BUBESHI J

As to the issue of the format of a paper judgment counsel submitted that the law does

A not stipulate a particular format of how a judgment should look like and that no

decision has been reversed simply because the judgment is too short. The respondent

has cited the case of Transport Equipment Limited v D P Valambhia (1) by Rubama J

(as he then B was); that the procedure was not faulted by the Court of Appeal.

On the issue of costs of repair to the vehicle, counsel submitted that the relevant

document, annexure C, was produced before the court. This was not contradicted by

the applicants/defendants. That the respondent could not produce receipt since the C

monies were yet to be paid.

On the compensation for loss of use counsel for the respondent submitted that there

was such evidence available before the trial magistrate. And since the affidavit was

not open for challenge the trial magistrate was not in error. It was counsel's

contention that D the claim was sufficiently proved. As to the duty to mitigate loss,

counsel for respondents while conceding that the respondent has a duty in Law to

mitigate loss was of the opinion that it was the appellants who preversed the

respondents from so doing by their refusal to sign the insurance forms. The appellants

cannot be heard now to rely on E that equitable doctrine.

All in all the respondents are submitting that the appeal be dismissed with costs for

lack of substance.

I have had time to study the record of this case. The revelations are that the

appellants then defendants were served with summons to appear for the mention (and

not hearing) F on 16 December 1993. The appellants refused to acknowledge service

of summons and the Court was entitled to enter judgment for the plaintiff.

However, I think the trial magistrate ought to have been guided by the procedure

under Order 9 Rule 6(1)(a)ii(B) which reads: G

`6 (1) where the plaintiff appears and the defendant does not appear when the

suit is called for hearing then

(a)(i)...

(ii) If the suit is before any court other then the High Court. H

(A) ...

(B) the summons issued was a summons to appear and it is

proved that the summons was duly served, the court may enter judgment for the

plaintiff.'

In the instant case it is evident the court proceeded under Order 8 Rule 14(2)(b). The

I relevant proviso reads:

1996 TLR p244

BUBESHI J

A `14(1) ...

(2) In any case in which a defendant who is required under subrule (2) of

Rule (1) to present his written statement of defence fails to do so within the period

specified in the summons the Court may--

B (a) ...

(b) in any other case, upon application in writing by the plaintiff,

fix a day for ex-parte proof and may pronounce judgment in favour of the plaintiff

upon such proof of his claim.' (Emphasis supplied) C

I say the trial magistrate was in error to act under this provision because in the first

instance the summons issue to the defendants now appellants did not require him to

present their defence within a period stated. The summons issued to the appellants D

required them to appear in court without fail and produce documents they intended

to rely on, Secondly, the plaintiff did not formerly apply to court for ex-parte proof in

terms of Order 8 Rule 14(2)(b) above cited. I would therefore agree with Mr Kapinga

learned counsel for the appellants that the procedure adopted by the trial magistrate

was irregular. E

Coming now to the first ground of appeal-the judgment. Rules 4 and 5 of Order 20 of

the Civil Procedure Code 1966 provide that a judgment should contain a concise

statement of the case, the points, for determination, the decision that was reached and

the reason for such decision. F

There is however no specific format of how a judgment should look. It is sufficient if

it is formulated to contain the elements stated hereinabove. And the contents in each

judgment would on the whole depend on each individual case. G

What happened in the case/appeal before me is that after the plaintiff had filed an

affidavit for ex-parte proof pursuant to an order of the trial magistrate, the latter

recorded the order that

`Upon filing the ex-parte affidavit, judgment is entered in favour of the

plaintiff as prayed Sgd.' H

In my humble view the trial magistrate strayed into an error when he entered

judgment for the plaintiff without evaluating the contents of the affidavit in as far as

proof for damages or claim was concerned. An affidavit like any other piece of

evidence has to be I analysed and evaluated even where it is not being challenged.

One

1996 TLR p245

BUBESHI J

does not merely file an affidavit and expect the trial court to act on it wholesale

without A some scrutiny. The scrutiny of the affidavit is more so in such cases as the

appeal before me where damages and or compensation are being claimed. Paragraph 9

of the plaintiffs affidavit states: B

`9‚ That shillings five hundred and fifty thousand was required to repair

the vehicle as shown on an invoice by Sanbern Engineering Services Limited annexed

hereto and marked C.'

The immediate question that comes to my mind is: was this figure (Shs 550,000/=) the

C actual sum that the plaintiff paid for the repair? Was there a receipt issued? The

respondent has stated that

`the respondent could not produce a receipt because the monies were yet to

be paid'. D

That being the case the actual repair expenses could not be the sum of Shs 550,000/=.

Similarly for the compensation figure of Shs 8,640,000/= there was no evidence to

show how this figure had been arrived at. It was the duty of the trial magistrate to

analyse the E evidence before him and come to his own conclusion. By merely

adopting the filed affidavit is not proof in such a case. What I wish to emphasize is

that whether it is a long judgment or a short one, each case has to examined on its

own facts. And the facts of each will dictate what type of judgment shall emanate

therefrom. In cases for ex-parte F proof by affidavit the trial magistrate has a duty to

examine the filed affidavit and satisfy himself whether the alleged claim has been

proved by the affidavit or otherwise.

That being the position I am inclined to allow the appeal and order that the case be

heard G before another magistrate with mandate to admit further evidence. And to

the extent this appeal is allowed with costs.

1996 TLR p246

A