NIMROD ELIREHEMAN MKONO v STATE TRAVEL SERVICE LTD. & MASOO SAKTAY 1992 TLR 24 (CA)

 NIMROD ELIREHEMAN MKONO v STATE TRAVEL SERVICE LTD. & MASOO SAKTAY 1992 TLR 24 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Ramadhani JJA, Mnzavas JJA, Mapigano Ag. JA

28 February 1992 B

Flynote

Civil Practice and Procedure - Convictions in Criminal case - Whether or not

conclusive of the commission of the offence by the accused for purposes of a civil suit.

Civil Practice and Procedure - Written Statement of Defence - Whether the Advocate

can C sign on behalf of his client.

Civil Practice and Procedure - Written Statement of Defence -Amendment of -

Without leave of the court - Whether fatal to the proceedings.

-Headnote

In the District Court of Musoma the second respondent, then accused, was convicted

D of causing death by dangerous driving and driving a motor vehicle on a public road

in a manner which having regard to all the circumstances then pertaining was

dangerous to the public or to any other person using the road. After the conviction

the appellant E sued the respondent in the High Court claiming Sh. 4 million as

damages for the benefit of the deceased's estate. In the course of the proceedings two

issues arose. First whether or not the 2nd respondent was negligent in his driving.

Second whether the amended W.S.D. by the second respondent was properly before

the court and F whether the signing of the said W.S.D. by the 2nd respondent's

advocate was proper in law. As to the first question the judge ruled that negligence

was still an issue in the Civil case before him. On the second issue the judge said the

W.S.D was properly before G him and that the signing of the W.S.D. by the

advocate was in order. The appellant appealed to the Court of Appeal.

Held: (i) Under section 43A of the Tanzania Evidence Act, a conviction in criminal

proceeding in the absence of an appeal, is conclusive evidence that the person so H

convicted was guilty of that offence;

(ii) the proviso to 0.6 R.14 of the Civil Procedure Code allows an advocate by reason

of absence of the client or for other good cause to sign on behalf of his client; I

(iii) the amendment of the W.S.D. without leave of the court

1992 TLR p25

MNZAVAS JJA, RAMADHANI JJA, MAPIGANO AG. JA

offended the provisions of 0.8.R.13 but this did not prejudice the appellant's case. A

Case Information

Appeal allowed in part.

Uzanda, for the appellant B

Mnzavas, for the respondent

[zJDz]Judgment

Mnzavas and Ramadhani, JJ.A. and Mapigano, Ag. J.A.: In the District Court of

Musoma (TRAFFIC CASE NO. 5/1984) the second respondent/then the accused was

C convicted of causing death by dangerous driving and driving a motor vehicle on a

Public road in a manner which having regard to all the circumstances then pertaining

was dangerous to the public or to any other person using the road.

Consequent to the conviction the appellant/plaintiff filed a suit (civil case No. 158/86)

in D the High Court against the respondents/defendants claiming a total of over shs.

4,000,000/= as "general damages, special damages, damages for the benefit of the estate

and such farther reliefs as the Court may deem fit".

When the case came up for hearing Mr. Uzanda, learned counsel for the E

appellant/plaintiff, asked the Court to adopt three issues he had framed. Mr. Mnzavas

for the respondents/defendants argued that the issues must include whether or not

the 2nd respondent/2nd defendant was negligent in his driving. Mr. Uzanda

countered that the question whether or not the second respondent was negligent in

his driving was F not an issue and quoted section 43A for the Evidence Act in

support of his argument.

There were also arguments before High Court whether the amended written

statement of defence by the second defendant/second respondent was properly before

the Court G and also whether the signing of the written statement of defence as well

as the amended written statement was proper.

After hearing arguments from both parties the learned judge held in favour of the

respondents/defendants that negligence was still an issue in the civil case before him,

that H the amended written statement of defence by the 2nd defendant was properly

before the Court and that the signing of the written statement of defence and later

the amended written statement of defence by the learned defence counsel was in

order.

It is against this ruling by the High Court that the appellant has come to this Court. I

1992 TLR p26

MNZAVAS JJA, RAMADHANI JJA, MAPIGANO AG. JA

Before us Mr. Uzanda, learned counsel for the appellant submitted that the conviction

A of the 2nd respondent was not disputed and as such the respondents could not

deny negligence in the civil case. In support of his argument the Court was referred to

the decision in Robinson. v Oluoch [1971] E.A. 376. It was also his submission that in

B view of the wording of section 43A of the Evidence Act the second respondent

could not deny negligence and that the most he could do was to plead contributory

negligence. To fortify his argument he quoted the decision in Queens Cleaners and

Dyers Ltd. v East African Community and Others [1972] E.A. 229 and Civil Appeal

No. 8 of C 1989 - Benedicto Augustino & Two Others v Godwin Manase Zephania;

decided by this Court. It was also the learned counsel's submission that there was no

plea of contributory negligence by the respondents.

As for the signing of the written statement of defence by the advocate for the

respondent D it was argued that this was contrary to 0.6 R.14 of the Civil Procedure

Code. It was submitted that there was no good reason why the party concerned

should not have signed the pleading.

Finally Mr. Uzanda argued that the filing of an amended written statement of defence

E without first being granted leave by the Court went counter to the provisions of 0.8

R.13 of the Civil Procedure Code; and that the trial judge should have disallowed the

amended written statement of defence.

It was submitted that on the pleading the respondents were liable and that the only F

issue before the High Court should be the question of quantum.

In rebuttal Mr. Mnzavas, learned counsel for the respondents supported the decision

of the High Court. It was submitted that section 43A of the Evidence Act deals with

criminal matters and that it does not stop a party going to court in connection with a

G civil suit. The learned counsel also referred us to the decision of this Court in Civil

Appeal No. 8/89 (supra) in which section 43A of the Evidence Act was discussed.

As for the signing of the written statement of defence by the advocate for the 2nd H

respondent it was argued that the 2nd defendant was served by substituted service by

publication on the application of the appellant/plaintiff and that the advocate had to

sign on behalf of the 2nd respondent/2nd defendant who was absent. In support of his

argument the Court was referred to 0.6 Rules 14 and 15 of the Civil Procedure Code.

I

1992 TLR p27

MNZAVAS JJA, RAMADHANI JJA, MAPIGANO AG. JA

Coming to the question of amendment of the written statement of defence without

first A obtaining leave of the Court Mr. Mnzavas argued that 0.8 Rules 1 and 2

allowed the respondent to amend the written statement of defence without leave.

In the alternative the learned counsel submitted that if the Court found that he

should have sought leave to amend the written statement of defence he prayed that

he be B allowed to amend the written statement of defence to enable him to include

the defence of contributory negligence.

After having carefully scrutinized the submissions by the learned counsels and having

read the decisions quoted to us, we are far from being persuaded by Mr. Mnzavas C

argument in rebuttal that section 43A of the Evidence Act only deals with criminal

matters and that a decision in a criminal case can be challenged in civil proceedings.

D

Section 43A of the evidence Act says:

A final judgment of a court in any criminal proceedings which declares any

person to be guilty of a criminal offence shall, after the expiry of the time limited for

an appeal against E that judgment or after the date of the decision of any appeals in

whose proceedings, which ever is the latest, be taken as conclusive evidence that the

person so convicted was guilty of that offence. F

Section 47A of the Kenya Evidence Act which is apparently analogous in its wording

with section 43A of our Evidence Act was subjected to legal interpretation by the East

Africa Court of Appeal in Robinson V. Oluoch [1971] E.A. 376 in which (at page 378)

the Court said, inter alia: G

The respondent to this appeal was convicted by a competent court of careless

driving in connection with the accident, the subject of his suit. Careless driving

necessarily connotes some degree of negligence ... in those circumstances it may not

be open to the H respondent to deny that his driving, in relation to the accident, was

negligent. But that is a very different matter from saying ... that a conviction for an

offence involving negligent driving is conclusive evidence that the convicted person

was the only person whose negligence caused the I

1992 TLR p28

MNZAVAS JJA, RAMADHANI JJA, MAPIGANO AG. JA

A accident, and that he is precluded from alleging contributory negligency on

the part of another person in subsequent civil proceedings.

Coming back home this Court had occasion to deal with section 43A of the Evidence

B Act in Civil Appeal No. 8 of 1989 in Benedicto Augustino and two others v Godwin

Manase Zephania (supra) where it said, inter alia:

... Mr. Raithatha assailed the inclusion of the result of the traffic case in a civil

suit and C disagreed with section 43A of the Evidence Act used by the learned trial

judge for this purpose. Section 43A in effect says that final judgment of a court in a

criminal offence shall be taken as conclusive evidence that the person so convicted

was guilty of that offence. Of D course it shall be taken as conclusive evidence that

the person so convicted and no other, was guilty of that offence, whether another

person contributed to the happening of the collision is a matter which calls for other

evidence.

That being the law regarding section 43A of the Evidence Act and bearing in mind

that E the 2nd respondent did not challenge ether conviction by way of an appeal

and after the time limited for an appeal had expired he cannot be heard to say that he

was not negligent in his driving. As he was convicted of causing death by dangerous

driving it F is our view that dangerous driving connotes some degree of negligence.

We agree with Mr. Uzanda's argument that the most the respondents could do is to

allege contributory negligence.

As for the signing of the written statement of defence by the advocate it is our view

that 0.6 R. 14 of the Civil Procedure Code gives discretion to the Court under the

proviso G "that where a party pleading is, by reason of absence or for other good

cause, unable to sign the pleading it may be signed by any person duly authorized by

him to sign the same or to sue or defend on his behalf."

It is our view that the Indian decisions quoted to us by Mr. Uzanda, learned counsel

for H the appellant are too restrictive. The learned trial judge properly exercised his

discretion when he said that the signing of the pleading by the advocate for the

respondents was in order.

Coming to the amendment of the written statement of defence without leave of the I

court we agree that this offended the clear

1992 TLR p29

MNZAVAS JJA, RAMADHANI JJA, MAPIGANO AG. JA

provisions of 0.8 R.13 of the Civil Procedure Code but it is also our considered view

A that this lapse on the part of the respondents did not prejudice the

appellant/plaintiff; this is especially so taking into account that the plaintiff had been

given leave to amend his plaint. We would like to mention, if only in passing, that

justice should always be done without undue regard to technicalities. B

In the event it is our view that this appeal should be allowed in part. The appellant is

awarded 50% of the costs which are to follow the event.

C Appeal allowed in part.

1992 TLR p29

D