ZUBERI AUGUSTINO v ANICET MUGABE 1992 TLR 137 (CA)

 ZUBERI AUGUSTINO v ANICET MUGABE 1992 TLR 137 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Omar JJA, Ramadhani JJA, Mapigano Ag. JA

F

9 June, 1992

Flynote

Civil Practice and Procedure - Damages - Special damages must be specifically

pleaded and proved. G

Civil Practice and Procedure - Proof of cost of repair - Vehicle engine blown off -

Cost of repair pleaded but not proved - Amount pleaded far below cost of purchasing

new engine - Whether amount pleaded awardable in the circumstances.

Civil Practice and Procedure - Devaluation of the Tanzanian shilling - Reasonable H

award for devaluation.

-Headnote

The respondent entrusted his mini-bus to the appellant with the ultimate intention of

selling it. While in possession of the respondent the engine of the bus was blown off.

In a I suit filed by the respondent in the High Court the appellant was found at fault

and the respondent

1992 TLR p138

RAMADHANI JJA, OMAR JJA, MAPIGANO Ag.JA

was awarded shs. 500,000/= as repair costs, shs. 500,000/= for non-use of the bus A

and shs. 1,000,000/= to off-set the devaluation of the shilling.

On appeal the awards by the High Court were attacked.

Held: (i) It is trite law that special damages must be specifically pleaded and proved;

B although pleaded cost of repair was not proved since the engine was blown off and

because it is a notorious fact that prices are rising in astronomic proportions and that

the amount pleaded cannot even buy a reconditioned engine we allow the amount C

pleaded;

(ii) we hold it as a fact needing no proof that the value of our shilling has been

going down very fast; however, the rate of 200% is very high and that a 50% rate is

reasonable in the circumstances.

Case Information

Appeal dismissed. D

Magongo, for the appellant.

[zJDz]Judgment

Ramadhani and Omar, JJ.A. and Mapigano, Ag. J.A.: The respondent, Anicet E

Mugabe, sued two people: the appellant, Zuberi Augustino, and another person who

was the second defendant, Daudi Missana, who was found not at fault and so did not

have a reason to appeal.

The respondent owns a Toyota mini bus with registration number TZ 84061. He F

wanted to sell it so he asked the appellant to look up for prospective buyers. The bus

was entrusted to the appellant who drove it from Nyegezi to Amini Mungu Garage in

Mwanza town where it was agreed that it would be kept. That was on 2/12/1988. Two

days later, on 4/12/88, the respondent was told that the bus had broken down at G

Kisesa. It was not denied that the engine of the bus was blown off and the respondent

towed the vehicle to Mabula Garage where it is to date.

The High Court of Tanzania at Mwanza (Munyera, J.) found the appellant at fault and

awarded the respondents Shs. 500,000/= he had prayed for as repair costs, another H

Shs. 500,000/= for the non-use of the bus and Shs. 1,000,000/= to off set the

devaluation of the shilling.

The appellant was represented by Mr. Magongo, learned advocate, and he had six

grounds of appeal which in the course of hearing he abandoned all but two. In the

first I ground the complaint is that special damages have been granted by the learned

judge which

1992 TLR p139

RAMADHANI JJA, OMAR JJA, MAPIGANO Ag.JA

were not specifically proved and indeed the award for the non-use had not even been

A specifically pleaded. Then the other ground is that the devaluation at the rate of

200% granted by the learned judge is manifestly excessive.

The respondent was not represented and in effect did not make any submissions in

reply to the two grounds of appeal. B

It is trite law, and we need not cite any authority, that special damages must be

specifically pleaded and proved. Cost of repair was pleaded but not proved. The

respondent merely stated it to be Shs. 500,000/=. However, the learned trial judge was

satisfied that the engine of the bus was completely blown off and is in fact beyond C

repair. It is a notorious fact that prices are rising in astronomic proportions and that

the amount pleaded cannot even buy a reconditioned engine. So though repair costs

have not been specifically proved we allow the amount pleaded. Then as already said,

non-use was not all pleaded. However, it was not disputed that the appellant was D

using the bus for passenger trips between Mwanza town and Kisesa and the engine

was damaged in that process. He definately got some advantage which he should not

be left to benefit from his wrongful acts. We agree with Mr. Magongo that the

respondent intended to sell the bus. But that could not proclude him from putting it

into use. E Besides, he wanted to sell the bus so as to realise money with which to

buy a tractor which he believed would be more profitable. Those plans have yet to

materialise. So it is our well considered opinion that the respondent is entitled to

some relief and we would sustain the award of Shs. 500,000/= under the prayer of

"any other relief this Court F may deem just and fit to grant". We so grant.

The award for devaluation has exercised our minds greatly. We hold it as a fact

needing no proof that the value of our shilling has been going down very fast.

However, we agree with Mr. Magongo that the rate of 200% is very high. We think a

50% rate is G reasonable in the circumstances of this case. Thus we allow shs.

250,000/= for the devaluation.

In the end result we grant a total of Shs. 1,250,000/= with an interest of 10% from the

date the vehicle was damaged, that is 4/12/1988, to the date of payment. H

The appeal is dismissed except to the extent allowed above. The appellant is to pay

75% of the costs both here and below.

I Appeal dismissed.

1992 TLR p140

A