SAIDI KIBWANA AND GENERAL TYRE E.A. LTD v ROSE JUMBE 1993 TLR 175 (CA)

SAIDI KIBWANA AND GENERAL TYRE E.A. LTD v ROSE JUMBE 1993 TLR 175 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

(as administratrix of the Estate of Jumanne Jumbe)

CIVIL APPEAL NO. 6 OF 1993 B

30 July, 1993

(From the judgment and decree of the High Court of Tanzania at Arusha, Munuo, J.)

C

Flynote

Civil Practice and Procedure - Interest on general damages - Trial Judge awards

interest on the principal sum at 5% per month from the date of filing the suit to the

date of full settlement - Whether correct to award interest on D general damages

from the date of filing the suit - Interest - Award of interest on general damages -

Award of interest at 5% per month - Whether too high and out of proportion.

Civil Practice and Procedure - Abatement of suits - Actions in respect of torts - legal

provisions saving certain E causes of action based on tort from abating on the death

of either party.

-Headnote

The husband of the respondent filed a suit against the appellants claiming damages

due to negligent F driving by the first appellant leading to an accident which caused

serious injuries to the husband. The suit took inordinately long before it was finally

determined by the High Court. The husband died while the suit was still pending.

The widow, the respondent, applied for and was granted letters of administration

after which she applied to be brought on the record as the legal representative of the

deceased plaintiff to continue the suit. The application was granted and the

respondent was brought G on the record and she continued to prosecute the suit.

The learned Trial Judge in the end found the appellants (defendants) guilty of

negligence and awarded the respondent (plaintiff) Shs 600,000/= as general damages.

In addition the Judge ordered the appellants to pay the respondent interest at the rate

of 5% per month from the date of filing the suit to the date of final settlement. The

appellants H appealed to the Court of Appeal challenging the manner the Judge

awarded interest. The Court of Appeal considered the question of award of interest,

and also digressed and considered a number of other issues including abatement of

suits based on tort.

Held: (i) Interest on general damages is only due after the delivery of judgment

because then the principal amount due is known; I

1993 TLR p176

A (ii) The rate of interest to be awarded during the period after the judgment

is delivered is governed by the provisions of Order 20 Rule 21 of the Civil Procedure

Code which is limited between the minimum of seven per cent per annum and the

maximum of twelve per cent per annum;

(iii) The Trial Judge was wrong to grant interest on general damages from

the date of filing the B suit;

(iv) The Trial Judge was wrong to award interest at the rate of 5% per

month beyond the date of delivery of judgment; such rate in any case was too high

and out of proportion;

(v) Obiter: the general rule is that all rights of action and all demands

existing in favour of or C against a person at the time of his death survive to or

against his representatives, except those rights which are tied up with the

individuality of the deceased which are caught up in the maxim actio personalis

moritur cum persona, i.e., a personal right of action dies with the person;

(iv) Obiter: as a general rule the maxim actio personalis moritur cum

persona applies to actions D in respect of torts so that on the death of either party to

such action the right to sue will be extinguished;

(vii) Obiter: the provisions of section 9 of the Law Reform (Fatal Accidents

and Miscellaneous Provisions) Ordinance, Cap. 360, save causes of action based on

tort from abating on the death of either party unless they are for defamation,

seduction or inducing spouses to E separate;

(viii) The right to sue in this suit survived the death of the plaintiff and the

legal representative was properly brought on the record.

Case Information

Appeal allowed.

F Cases referred to:

1. Scott v. London and St. Katherine Docks Co. [1865] 3 H & C 596.

2. Barkway v. South Wales Transport Co. Ltd. [1950] 1 All ER 392.

3. Admiralty Commissioners v. SS Susquehanna [1926] AC 655.

4. Mohamed s/o Mohamed v. Athman Shamte [1960] EA 1062.

G 5. J.S. Joban Putra v. G.M. Jaffer, High Court Civil Revision No. 2/60

(unreported).

6. Hooda v. G.M. Gulamali, High Court Civil Revision No. 4/60

(unreported).

7. Prem Lata v. Peter Musa Mbuju [1965] EA 592.

8. National Bank of Commerce v. Parma Shoe Company [1988] TLR 224.

H Makange, for the respondent.

Maro, for the appellants.

[zJDz]Judgment

Mfalila, J.A., delivered the following considered judgment of the court:

I The respondent in this appeal is shown as Rose Jumbe in her capa-

1993 TLR p177

MFALILA JA

city as administrator of the Estate of one Jumanne Jumbe. A brief explanation is

therefore called for. A Jumanne Y Jumbe was the husband of Rose Jumbe and at all

material times he was employed as Export Officer by the second appellant, General

Tyre East Africa Ltd headquartered at Arusha. According to the claim, on or about 21

October 1978, the said Jumanne Jumbe while in the course of B his employment

with the second appellant, was travelling in the second appellant's motor vehicle

driven by the first appellant, when the said motor vehicle was involved in an accident

and caused serious injuries to the said Jumanne Jumbe. After his recovery, Jumanne

Jumbe filed a claim in tort C against the second appellant as employer and the first

appellant as driver of the said motor vehicle and employee of the second appellant.

He claimed general damages amounting to Shs 600,000/= against the first appellant for

his negligent driving and against the second appellant as being vicariously liable for

the negligence of the first appellant, its employee. The suit took inordinately long D

before it was finally determined by the High Court, hence unfortunately Jumanne

Jumbe the plaintiff in Arusha High Court Civil Case No 103 of 1983 died in 1988

while it was still pending. At this stage, the widow Rose Jumbe applied for and was

granted letters of administration to administer the estate E of her late husband. After

getting letters of administration, she applied to be brought on the record as the legal

representative of the deceased plaintiff to continue the suit. The application was

granted on 13 December 1989, and it was ordered that she be brought on the record

and henceforth the suit F was prosecuted by her in that capacity and it is in that

capacity that she appeared before us as the respondent. Having traced the history of

how Rose Jumbe came to be on the record of this appeal, the next question is whether

her being brought on record was proper in law. The learned Judge who granted the

application and everyone else appear to have assumed the automatic nature of the G

position.

The actual position is neither automatic nor simple. The question is whether on the

death of the original plaintiff Jumanne Jumbe, the suit abated. The governing legal

provision is Order 22 Rule 1 of the Civil Procedure Code 1966 which provides as

follows: H

`The death of a plaintiff or defendant shall not cause the suit to abate if the

right to sue survives.' (The emphasis is ours.)

When therefore Mrs Rose Jumbe applied to be brought on the record to continue the

suit as personal representative of the de- I

1993 TLR p178

MFALILA JA

A ceased, the Court should have asked itself whether the plaintiff's right to sue the

appellants survived his death. In this connection it was incumbent upon the

respondent who was claiming that the deceased plaintiff's right to sue had survived to

her, to show either that she was entitled to assert the right to the same relief claimed

by the deceased plaintiff or that there are some statutory B provisions entitling her

to do so.

The general rule is that all rights of action and all demands existing in favour of or

against a person at the time of his death survive to and against his representatives,

except those rights which are tied up C with the individuality of the deceased, these

are caught up in the maxim - actio personalis moritur cum persona, ie a personal right

of action dies with the person. As a general rule this maxim applies to actions in

respect of torts so that on the death of either party to such action the right to sue will

be D extinguished. Hence in the present case since the claim by the deceased

plaintiff was based on tort, this right to sue did not survive his death. In the

circumstances, the respondent's application to be brought on record as the deceased's

legal representative, should not have been granted in the E automatic manner in

which it was. The only salvation left to the respondent was whether there are

statutory provisions to override the common law position. In the Indian Civil

Procedure Code, the position is saved by the provisions in the Indian Succession Act

1925 and the Probate and F Administration Act. However our own Probate and

Administration Ordinance cap 445 would not be of any assistance to the respondent

because the nearest provision in s 40 does not specifically provide for the survival of

causes of action. We have laboured to save this suit because given the gross

mishandling that it has suffered and the unnecessary delays to which it was subjected

mostly due to G the plaintiff's own counsel, we thought it would be most

unfortunate and tragic for the unfortunate widow if the suit were to fail on the basis

that the right to sue did not survive the death of the plaintiff. The Law Reform (Fatal

Accidents and Miscellaneous Provisions) Ordinance cap 360 came readily to H our

assistance. Section 9 of this Ordinance provides as follows:

`9(1) Subject to the provisions of this section, on the death of any person after

the commencement of this Ordinance, all causes of action subsisting against or vested

in him shall survive against, or as the case may be for the benefit I of his estate:

1993 TLR p179

MFALILA JA

Provided that this subsection shall not apply to causes of action for defamation

or seduction or for inducing one A spouse to leave or remain apart from the other or

to claims for damages on the ground of adultery.

(2) not applicable

(3) no proceedings shall be maintainable in respect of a cause of action in

tort which by virtue of this section B have survived against the estate of a deceased

person unless either -

(a) proceedings against him in respect of that cause of action were

pending at the date of his death; or

(b) proceedings are taken in respect therefor not later than six

months after his executor or administrator took out representation.' C

This section specifically saves causes of action based on tort from abating on the death

of either party unless they are for defamation, seduction or inducing spouses to

separate, which this one is D not any of these. Therefore the right to sue in this suit

survived the death of the plaintiff and the legal representative was properly brought

on the record.

Having firmly established the respondent's legal position, we now turn to the suit

itself. In the formal amended plaint which was about the fourth version, the plaintiff

alleged that on or about 21 October E 1978, while in the course of their

employment, the first defendant and the plaintiff were travelling in the second

defendant's motor vehicle, the first defendant being the driver, attempted to overtake

motor vehicle registration No TZ 34121, Isuzu and in the process crashed into the

Isuzu whereby the F plaintiff sustained injuries leading to permanent disabilities.

The plaintiff went on to assert that this accident was a result of the negligence of the

first defendant as employee and/or authorised driver of the second defendant. He

particularised the first defendant's negligence as follows: G

(a) attempting to overtake the Isuzu vehicle while it was not possible and

in the process crashed into the same;

(b) while overtaking, the first defendant went completely off course as the

other vehicle's driver tried to swerve to the right; H

(c) that due to the above mentioned negligence the plaintiff suffered

injuries and permanent disabilities.

The injuries suffered by the plaintiff were also particularised as follows: I

1993 TLR p180

MFALILA JA

A (a) Injuries to the spine from the mid-thoracic spine resulting in complete

paraplegia.

(b) Multiple bodily bruises.

(c) Nervous shock.

B By reasons thereof the plaintiff claimed general damages amounting to Shs

600,000/=, interest on the decretal amount at 9% per month from the date of suit till

date of full and final payment and costs of the suit.

C At the conclusion of the trial in the High Court, the learned Judge found on the

evidence before her that at the time of the alleged accident, the plaintiff was in the

course of his employment with the second defendant, that the accident was caused by

the negligence of the first defendant and that therefore the plaintiff was entitled to

the damages as claimed in the plaint. Accordingly, she awarded D the plaintiff the

sum of Shs 600,000/= as general damages, but reduced the interest claimed from 9% to

5% per month from the date of filing the suit to the date of full settlement and costs

of the suit. The appellants then lodged this appeal but only against the rate of interest

awarded. They were apparently satisfied with the Judge finding on their liability and

have in fact already paid to the respondent the principal sum adjudged. In their

memorandum of appeal which contained two E grounds, the appellants complained:

`1. That the learned Trial Judge erred in law in awarding interest on the

decretal amount at the rate of 5% per F month beyond the date of delivery of

judgment.

(b) That the learned Trial Judge erred in law and fact in awarding

interest on the principal sum at the rate of 5% per month, which rate is clearly

excessive and out of proportion.'

G As indicated, this appeal is not concerned with the liability of the appellants in

negligence because there was no appeal against the Judge's finding on this point. In

this appeal we are only concerned with the rate of interest which was awarded.

However, having gone through the record of trial and noted some shortcomings, we

have decided to deal with the question of the absence or presence of H negligence

on the part of the first appellant and the second applicant's vicarious liability so that

our observations can act as a guide in future cases. It was for the same reason that we

dealt with the point whether the plaintiff's right to sue survived his death.

I In our view, the most important question was whether negligence

1993 TLR p181

MFALILA JA

on the part of the first appellant was established. After establishing negligence on the

part of the first A appellant, the respondent had to show that at the time of the

accident, the first appellant was acting in the course of his employment as employee

of the second appellant. What was the evidence in this regard? In her evidence in

chief the respondent said nothing regarding the first appellant's alleged B

negligence, this is not surprising because she admitted that she does not know much

about the accident as she did not witness it. But in cross-examination, she acted that

although she was not present when the accident happened, the deceased had told her

that the accident occurred when the first appellant was overtaking an Isuzu truck TZ

34121 in the course of which the first appellant's C vehicle hit the Isuzu truck. The

next question is what were the circumstances in which the first appellant's vehicle hit

the lorry? Two explanations were offered; one by the first appellant and the other by

the respondent. Of course the respondent not having been at the scene could only

hazard a guess. She said that since the first appellant knocked the lorry as he was

overtaking it causing his D own vehicle to overturn, this circumstance, she said,

appears to suggest that the overtaking was done recklessly without due attention.

And, in her written submissions at the end of the trial, the respondent submitted that

the first appellant's negligence was to be found in the speed at which he E was

driving. In her submission, the first appellant's failure to stop or otherwise manage

the vehicle at the time of the accident, is evidence of high speed and therefore

reckless driving.

On the other hand the first appellant explained that the accident happened when he

started F overtaking an Isuzu lorry after indicating to the lorry driver his intention

to do so. As he came abreast with the lorry, it swerved onto his path knocking his

vehicle and causing it to overturn. He added that G the lorry swerved to his side

because its driver was trying to avoid a cyclist. His tyre also burst in the process. In

the circumstances the appellants submitted that there was no thread of evidence

adduced by the respondent before the Court to prove that the accident which resulted

in the alleged injuries was due to the negligence of the first appellant. They added

that in the Criminal Court the first H appellant was acquitted of the charge of

reckless driving.

In reply, the respondent stated that since her claim was not founded on the

negligence by the first appellant but rather on a claim based on injuries sustained in

the course of employment, the first I appellant's negligence was immaterial. The

Trial Judge did not

1993 TLR p182

MFALILA JA

A comment on this strange submission, but on our part we are satisfied that it was

misconceived both in fact and law. It was misconceived in fact because the

respondent specifically pleaded the first appellant's negligence in para 6 and

particularised the alleged negligence in the same paragraph in B three subparagraphs.

It was misconceived in law because the vicarious liability of an employer

does not depend on his relationship with the victim of the accident, but with the tortfeaser.

It was therefore extremely important and material to prove the first appellant's

negligence.

C In her judgment the Trial Judge had the following to say on the appellant's

liability in negligence:

`With regard to issue 2 (ie whether the accident was caused by the negligence

of the first appellant) there is the evidence of the first defendant who was driving the

accident vehicle at the material time. He stated that he flashed to D an Isuzu lorry

ahead of him that he was overtaking the said lorry but the lorry driver would not give

way thereby causing some tyres of the Range Rover ARG 134 to leave the tarmac road

resulting in the said Range Rover overturning. It is the considered view of the Court

that if the lorry driver would not give way to allow the first defendant to pass safely,

the first defendant was duty bound to slow down and drive behind the Isuzu lorry

until it was safe to E overtake it. The first defendant would have done so if he were

driving with due care and attention and not at an excessive speed. The circumstance

of the Range Rover the first defendant was driving getting off the tarmac and

overturning indicate that the first defendant was driving at such excessive speed or

with such recklessness that he F failed to control the said Range Rover thereby

causing it to overturn. Even if the first defendant were not negligent in his driving,

the plaintiff would still be entitled to damages for personal injuries sustained in the

material accident on the concept of res ipsa loquitor (sic) and furthermore because the

plaintiff was within the scope of duties G assigned to him by his employer the

General Tyre (EA) Limited when the motor accident occurred.'

From the above passage of the Trial Court judgment, we have been able to extract

four reasons on H which the learned Judge based her finding that the first defendant

was negligent thereby entitling the plaintiff to damages. These are:

(1) that the first defendant was driving at an excessive and reckless speed.

I (2) that he overtook a vehicle when it was not safe to do so as the vehicle

in front of him would not give him way.

1993 TLR p183

MFALILA JA

(3) on the doctrine of res ipsa loquitur. A

(4) that the plaintiff was at the time of the accident acting within the scope

of his employment.

Each of these reasons prompted some question in our minds. With regard to the first

reason, was B there any evidence led to support it? Apart from the fact that there is

no evidence led to support the first reason, it was not part of the pleadings, in other

words excessive and reckless speed was not among the particularised acts of

negligence pleaded in para 6 of the plaint. The Trial Judge should not therefore have

imported it. The second reason is well founded because it came from the first C

appellant's own mouth. He said, `I had flashed to the Isuzu lorry that I was

overtaking but the said lorry driver did not give me way so that the accident

occurred. . . .' It is clear from this that the first defendant was forcing his way to

overtake the lorry while fully aware that the lorry driver was not ready to give him

way as apparently there was a cyclist in front. Although speed was not pleaded in D

the particulars of negligence, and this is just one of the numerous weaknesses in the

conduct of the respondent's case, the first appellant must have been travelling at a

high speed while forcing his way to overtake the lorry. The act of forcing his way to

overtake the lorry even without the high speed E constituted negligent driving.

Since the accident involving the Range

Rover driven by the first appellant and the Isuzu lorry was thus obviously due to the

negligent and careless driving of the first appellant, the question of applying the

maxim res ipsa loquitur did not F arise as the Trial Judge indicated as being another

reason establishing the first appellant's negligence. We intend therefore to dwell at

length on this maxim and clarify its application. The learned Judge stated: `even if the

defendant was not negligent in his driving, the plaintiff would still be entitled to

damages for personal injuries sustained in the material accident on the concept of res

ipso G loquitor' (sic). This statement was a contradiction in terms arising out of the

confusion of the concept in this maxim and how and in what circumstances it should

be applied. If there is no negligence, the maxim simply would not arise. The

circumstances which give rise to the application of the maxim, constitute prima facie

evidence of negligence against the defendant. We think we H cannot better the

explanation of this maxim given by Professor Winfield in his book on Torts 13th ed at

125:

`In order to discharge the burden of proof placed upon him, it is usually

necessary for the plaintiff to prove specific I acts or omissions

1993 TLR p184

MFALILA JA

A on the part of the defendant which will qualify as negligent conduct.

Sometimes, however the circumstances are such that the Court will be prepared to

draw an inference of negligence against the defendant without hearing detailed

evidence of what he did or did not do. Thus for example the presence of an unlighted

vehicle on the road at B night will, if there is no other lighting, be regarded prima

facie evidence of negligence on the part of the driver. It is important to appreciate

however that this means no more than that in the absence of an explanation from the

defendant, the plaintiff has discharged his burden of proof. The inference of

negligence is by no means irresistible and the nature of the evidence required from

the defendant in rebuttal will depend in each case on the standard of C care called

for in the circumstances.

The position has, however, been complicated and obscured by the use in many

cases of the maxim res ipsa loquitur. As Morris LJ has said, the maxim `possesses no

magic qualities, nor has it any added virtue, other than D that of brevity, merely

because it is expressed in Latin. When used on behalf of a plaintiff it is generally a

short way of saying: `I submit that the facts and circumstances which I have proved

establish a prima facie case against the defendant.' There are certain happenings that

do not normally occur in the absence of negligence, and upon proof of these a court

will probably hold that there is a case to answer. In other words the maxim does no

more than express E in three words what has just been said.'

From this passage we discern one condition before this maxim can be applied to a

particular F situation. That is that the mere fact of the accident having happened

should tell its own story and raise the inference of negligence so as to establish a

prima facie case against the defendant. The story should be clear and indicate only a

prima facie case of negligence against the defendant. This concept is illustrated by the

following two cases. In Scott v London and St Katherine Docks Co (1) six bags of

sugar fell on the plaintiff whilst lawfully passing a doorway of defendant's warehouse.

G Defendants called no evidence and Erle CJ stated:

`There must be sufficient evidence of negligence. But where the thing is

shown to be under the management of the H defendant or his servants, and the

accident is such as in the ordinary course of things does not happen if those who have

the management use proper care, it affords reasonable evidence, in the absence of

explanation by the defendants that the accident arose from want of care.'

On this principle, the Chief Justice found that sufficient evidence of negligence

existed in the case I before him. From the above passage

1993 TLR p185

MFALILA JA

three conditions for the application of the maxim can be extracted. These are: A

(1) That the thing causing the damage be under the control of the

defendant(s) or his servant(s).

(2) That the accident must be such as would not in the ordinary course of

things have B happened without negligence.

(3) Absence of any explanation, by the defendant, in other words there

must be no evidence of the actual cause of the accident. This is because if the facts are

sufficiently known the question ceases to be whether they speak for themselves, the

only question being whether on the facts as established negligence is to be inferred or

not. C

The case going the other way is Barkway v South Wales Transport Co Ltd (2). In this

case B was travelling as a passenger in the defendant's omnibus and was killed when it

veered across the road D and fell over an embankment. A great deal of evidence was

given by the defendants and it was established that the cause of the accident was a

defect in one of the tyres which could have been discovered beforehand if the

defendants had required their drivers to report occurrences which could result in

what was described as `impact fractures'. The House of Lords held that as the cause of

the E accident was known, res ipsa loquitur did not apply, but that on the facts the

negligence of the defendants was established.

Like in the Barkway case (2), the cause of the accident in the present case is known ie

the first appellant attempting to forcibly overtake a lorry when it was obviously not

safe to do so. The maxim F res ipsa loquitur was therefore clearly not applicable.

The fourth and last reason used to establish the second defendant's liability was that

the plaintiff was at the time of the accident acting within the scope of his

employment. With respect, this also G confused issues. The vicarious liability of an

employer in tort as we have already stated, is not governed by the relationship

between the employer and the victim of the tort of negligence. Rather his liability is

based on his relationship with the tort-feaser who must have at the time of the

accident been acting within the scope of his employment. The relationship of the

plaintiff to the second H defendant would have been relevant only if he had based

his claim on the Workmen's Compensation Ordinance. On the facts of this case, there

is no doubt that the first defendant or the present first appellant was at the time of the

accident acting within the scope of his employment with the second appellant. In the

circumstances the I

1993 TLR p186

MFALILA JA

A vicarious liability of the second appellant was thus firmly established.

The other point which we want to deal with again purely for reasons of future

guidance is the question of damages which were claimed and awarded in this case.

We say for future guidance B because the question is not before us. We have felt

compelled to make these observations because we strongly feel that the respondent in

this appeal as was her plaintiff husband, did not get proper advice as regards their

claim for damages, and at the end of the trial the Court did not face and C resolve

this problem properly to the plaintiff's fullest advantage. In all the four plaints, only

general damages amounting to Shs 600,00/= were claimed. We are at a loss to

understand why Counsel on behalf of the plaintiff limited himself to this head of

claim. We think this was very unfortunate. In an accident of such magnitude which

resulted in such serious incapacitating injuries to the plaintiff, the D following reliefs

in addition to the general damages should have been specifically claimed.

(a) damages for loss of future earnings

(b) damages for pain and suffering

E (c) damages for loss of expectation of life.

This we think could have done justice to the plaintiff or his estate. But as it turned out

only a meagre Shs 600,000/= was claimed as general damages. The Trial Court

automatically awarded this figure F acting as if its hands were tied to the figure

asked for. The fact of the matter is that the Court was not tied to the figure of Shs

600,000/= which in any case should not have been pleaded. A plaintiff should only

ask for general damages and leave the quantification to the Court. The Court

determines how much damages are due be it in contract or tort, which so far as

money can compensate, will G give the injured party reparation for the wrongful act

and for all the natural and direct consequences of the wrongful act. As Lord Dunedin

stated in the case of Admiralty Commissioners v SS Susquehanna (3):

H `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.' (read Court).

I Hence the fact that in the present case the plaintiff mentioned a specific figure did

not take away the function of the Court to de-

1993 TLR p187

MFALILA JA

termine and quantify the damage suffered. In the circumstances of this case where

only one head of A claim was made, the Trial Court would have been perfectly

entitled to ignore the figure claimed and award a much higher figure. During the

hearing of the appeal, Mr Makange, Counsel for the respondent, invited us to assess

afresh the general damages because according to him, this Court B is not tied to the

amount claimed or that awarded by the High Court. This Court, he said, can award

damages as it thinks fit. We agree with Mr Makange that we are not tied to the

amount claimed or that awarded by the High Court, but we have to be moved to

exercise this jurisdiction. We cannot do it in the absence of an appeal and since in this

case there was no appeal against the C amount of general damages awarded, we

cannot take up the matter on our own with a view to interfering or changing what

was claimed or awarded.

Having digressed for so long in the hope that our digression will be of assistance in

future cases, we D now turn to the appeal before us regarding the rate of interest

which was awarded by the Trial Court. As indicated earlier on in this judgment, the

Trial Judge awarded interest on the principal sum of 5% per month from the date of

filing the suit to the date of full settlement. In their memorandum of E appeal, the

appellants stated that the Trial Judge erred in law in awarding interest on the decretal

amount at the rate of 5% per month beyond the date of delivery of judgment and that

in any case awarding interest at the rate of 5% per month was clearly excessive and

out of proportion. At the hearing of the appeal, Mr Maro, learned Counsel who

appeared for the appellants, submitted that the F power of the Trial Court to award

interest is provided in s 29 of the Civil Procedure Code and that interest on general

damages cannot be awarded from the date of filing the suit but from the date of

judgment. Interest from the date of filing the suit is only awarded on special damages.

He added that G since general damages are not known until they are assessed by the

Court, they are not owed until they are pronounced hence interest on them cannot be

backdated. In this case, he submitted, where the award was only for general damages,

the Trial Court could only award interest from the date of judgment and this at the

Court rate only. H

On the second ground of appeal, Mr Maro submitted that the rate awarded of 5% per

month was too high and that in any event the rate applicable after judgment is

between 7% and 12% per annum. The rate awarded at 5% per month is equivalent to

60% per annum which is clearly exorbitant. I

In reply Mr Makange defined the rate of interest awarded saying

1993 TLR p188

MFALILA JA

A that in awarding interest at this rate, the Trial Judge took into consideration the

heavy responsibilities which have fallen on the respondent after the death of her

husband and also the devaluation of the shilling. In the circumstances, he said, the

interest rate at 5% per month is not B excessive to warrant intervention by this

Court. In any case, he added, this was not the first time that a Court has awarded

interest at the monthly rate.

As Mr Maro rightly pointed out, the statutory power to award interest on judgment

debts is contained C in s 29 and O 20 r 21 of the Civil Procedure Code 1966. Section

29 provides as follows:

`Section 29 - The Chief Justice may make rules prescribing the rate of interest

which shall be carried by judgment debts and, without prejudice to the power of the

Court to order interest to be paid up to the date of judgment at such rates as it may

deem reasonable, every judgment debt shall carry interest at the rate prescribed from

the date of the D delivery of the judgment until the same shall be satisfied.'

Order 20 r 21 provides as follows:

`The rate of interest on every judgment debt from the date of delivery of the

judgment until satisfaction shall be seven E per centum per annum or such other

rate, not exceeding twelve per centum per annum as the parties may expressly agree

in writing before or after the delivery of the judgment or as may be adjudged by

consent.'

F The rate of interest prescribed under powers conferred on the Chief Justice by s

29 vide GN No 410/64 are the same as those prescribed under O 20 r 21 namely

between the minimum of 7% and the maximum of 12% per annum from the date of

the delivery of judgment until satisfaction. The rate G of interest to be awarded for

the period prior to the delivery of judgment is set at the discretion of the Court. The

rate which it considers reasonable. There are thus two divisions of interest under

Tanzania Law as opposed to three under s 34 of the Indian Civil Procedure Code

which ceased to apply in Tanzania in 1966. These two divisions correspond to the

period for which interest is H awarded. The first period covers the whole of that

period up to the delivery of judgment. The second period is the period from the

delivery of judgment to final satisfaction. The rate to be awarded for the first period is

entirely at the discretion of the Court, whereas the rate to be awarded for the second

I period is also at the discretion of the Court but within set limits ie between 7% and

12% per annum. Although for the pur-

1993 TLR p189

MFALILA JA

poses of fixing interest rates there are only two periods, the first period can be

subdivided in two: A namely the period prior to the institution of the suit and the

period between the filing of the suit till judgment. In the present case the learned

Trial Judge awarded interest at the uniform rate of 5% per month from the date of

filing the suit to the date of full and final payment. The Judge therefore B

consolidated two distinct periods, the one before and after judgment. Could the Judge

properly do this? This is the basis of the two complaints in the memorandum of

appeal. The two periods as we have already indicated are governed by different

methods of fixing the rates of interest. One in which C the Court has complete

discretion, and the other where the Court's discretion is bound within a limited area.

We do not think in the circumstances that the two periods could be consolidated and

treated as one for the purpose of fixing interest rates. In Mohamed s/o Mohamed v

Athman Shamte (4) the appellant obtained judgment against the respondent for Shs

1,000/= with interest therein D amounting to Shs 1,190/= to the date of filing

proceedings and further interest on the principal sum at the rate of 6% per annum

from the date of filing proceedings to the date of final payment. The plaintiff was not

satisfied with the rate of interest awarded between the date of filing the suit and the

date of judgment. He appealed to the High Court in which he complained among

other things that the learned E resident magistrate erred in not allowing the rate of

interest as agreed between the parties from the date of filing until judgment. At the

hearing, Counsel for the appellant submitted that as the rate of interest under the loan

agreement was 84% per annum, the appellant should be allowed interest at F this

rate also for the period between the date of filing of the suit to the date of judgment

the High Court held Mosdell J:

`Quite apart from legislative provisions on the subject, it is clear that this

Court has an inherent power to reopen a G harsh and unconscionable bargain

between two parties and in particular in relation to the rate of interest agreed to be

paid on a loan. . . .

The rate prescribed from the date of delivery of judgment is 6% as laid down

in the relevant Rules. But the interest H rate between the date of the filing of the

suit and the date of judgment is left to the discretion of the Court. In the instant case

the Resident Magistrate reached the conclusion that although a contractual rate of

interest might be deemed reasonable by the Court, it was not bound to award such a

rate of interest if it considered it harsh and I unconscionable. . . .

1993 TLR p190

MFALILA JA

A The discretion of the Court is not displaced by an agreement to pay a certain

rate of interest. The Court may or may not award the contractual rate of interest

between the date of the institution of the suit and judgment in the exercise of its

discretion. Whether it does so or not depends upon whether or not such rate is

reasonable.'

B Although the Athman Shamte case as well as J S Joban Putra v G M Jaffer (5) and

Hooda v G M Gulamali (6) were concerned with contractual rates of interest, unlike

the present case where the principal judgment debt is in the nature of general

damages in tort, nevertheless they underline the C principle governing the award of

rates of interest for different periods and the discretionary nature of the award for the

period prior to the delivery of judgment. In the two revision cases, a rate of interest at

21/2% per month was awarded but this as indicted was in contract and for periods in

which the D Court had discretion as to what rate to award ie the period before

judgment.

The case which is almost on all fours with the present case and therefore directly

relevant is Prem E Lata v Peter Musa Mbuju (7) which was an appeal from the High

Court of Kenya. In that case the appellant in a suit for damages for personal injuries

was awarded Shs 24,000/= as general damages and Shs 1,742/80 as special damages but

the Trial Judge refused an application to award interest on F these two sums from

the date of filing suit until judgment. The Court held that in personal injuries cases,

interest on general damages should not be awarded for the period between the date of

filing suit and judgment but interest should normally be awarded on special damages

if the amount claimed has been actually expended or incurred at the date of filing

suit. The Court (Law JA) stated at 593 (C-H):

G `The award of interest on a decree for the payment of money for the period

from the date of the suit to the date of the decree is a matter entirely within the

Court's discretion, by s 26 (equivalent to our s 29 supra) of the Civil Procedure Act.

Such a discretion must of course be judicially exercised, and where as in this case no

reasons are given for the H exercise of a judicial discretion in a particular manner, it

will be assumed that the discretion has been correctly exercised, unless the contrary

be shown. (Toprani v Patel [1958] EA 346.) In an attempt to satisfy us that the normal

practice is to award interest on the amount of a money judgment from the date of

filing suit, Counsel for the appellants referred us to Eastern Radio Service v R J Patel

1962 EA 818 and Y F Gulan Hussein v French I Somaliland Shipping Co Ltd

1993 TLR p191

MFALILA JA

[1959] EA 25. In both these cases the successful party was deprived of the use

of goods or money by reason of a A wrongful act on the part of the defendant, and in

such a case it is clearly right that the party who has been deprived of the use of goods

or money to which he is entitled should be compensated for such deprivation by the

award of interest. But suits for damages for personal injuries are in a different

category. It cannot be said that, at the date of B filing suit, the plaintiff is entitled to

any particular amount. This depends on the decision of a number of factors, including

liability contributory negligence, and the assessment of damages which may include

as in this case, a considerable element in respect of future disability. In these

circumstances, we do not consider that the Chief Justice wrongly exercised his

discretion in refusing to award interest from the date of filing suit in respect of the C

general damages, as the infant plaintiff cannot have been deprived of the money

represented by these damages from any particular date before judgment. Counsel for

the respondent does not however, oppose an order for the payment of interest on the

special damages awarded to the next friend as these represent out of pocket expenses

actually paid or incurred at the date of filing suit. We agree.' D

In the present case where no special damages were pleaded and awarded, the Trial

Judge overlooked every principle enunciated in the Prem Lata case quoted above as

well the provisions of E O 20 r 21 of the Civil Procedure Code when she awarded

interest at the rate of 5% per month from the date of filing the suit to the date of

satisfaction of the decree. Since the award was only for general damages, no interest

could be awarded for the period prior to the delivery of judgment F because before

delivery of the judgment which awarded general damages, the plaintiff was not

entitled to any particular amount which could attract interest. Interest on general

damages is only due after the delivery of judgment because then the principal amount

due is known. The Court has a G discretion to award interest for the period before

the delivery of judgment only on special damages actually expended or incurred, but

even this at such rate as the Court thinks reasonable. This discretion does not extend

to the period after the delivery of judgment. The rate of interest to be awarded during

the period after the judgment is delivered is governed by the provisions of O 20 r 21

H of the Civil Procedure Code which is limited between the minimum of seven per

centum per annum and the maximum of twelve per centum per annum. The Trial

Judge awarded a rate of interest at 60% per annum. Even for the period prior to the

delivery of judgment for which the Court has unlimited discretion subject to

reasonableness, the award of interest at that rate cannot be any description or

yardstick be re- I

1993 TLR p192

MFALILA JA

A garded as reasonable. It is twice the normal bank rate. Even if we were to agree

with Mr Makange that in fixing the interest at this rate, the Trial Judge took into

account the responsibilities which fell on the respondent upon the death of her

husband as well as the devaluation of the shilling, this rate B would still appear

unreasonable. But these two considerations have one main objection, that they are

irrelevant when considering the rate of interest to be awarded. They could be

relevant in assessing the amount of damages and then only if the claim was made vide

the provisions of Law Reform (Fatal Accidents Miscellaneous Provisions) Ordinance

cap 360. Then, the responsibilities of the C widow or other dependants would

feature prominently. But this was a case of the legal representative stepping into the

shoes of the plaintiff in a claim for personal injuries. With regard to the devaluation

of the shilling, this Court in National Bank of Commerce v Parma Shoe Company (8)

approved the D principle. In that case the High Court awarded Shs 50,000/= as

compensation for the depreciation in value of the sum claimed ie Shs 34,500/=. The

present appeal is however different, it is concerned with the rate of interest to be

awarded on the principal sum. This as it has been shown is governed by statute. The

depreciation in value of the principal sum is a separate and unrelated issue. E

Therefore both the considerations advanced by Mr Makange to support the 5% per

month interest rate are irrelevant.

For the reasons we have given, we uphold the appeal against the rate of interest

awarded by the Trial Court and say that the Trial Judge was wrong to grant interest

on general damages from the date of F filing the suit, that the Trial Judge was wrong

to award interest at the rate of 5% per month beyond the date of delivery of judgment

and that such rate in any case was too high and out of proportion. We accordingly set

aside the interest awarded at 5% per month from the date of filing the suit to full

payment. We order instead that the principal sum of Shs 600,000/= awarded as

general damages, G shall carry interest at the rate of 12% per annum from the date

of judgment to the date of full payment.

With regard to the costs of this appeal, we are aware that ordinarily the costs must

follow the event, H but in this case we have taken into account the fact that due to

the errors of her advocates in the High Court the respondent has been grossly

underpaid, her new responsibilities in the family and the fact that she was saddled

with this appeal purely on account of the Trial Court's errors in law. We I think for

these reasons that she should not be burdened further with extra costs.

1993 TLR p193

A