REVOCATUS I. KIDAHA v NATIONAL HOUSING CORPORATION 1988 TLR 59 (HC)

 

REVOCATUS I. KIDAHA v NATIONAL HOUSING CORPORATION 1988 TLR 59 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Msumi J

4th June, 1988 B

Flynote

Tort - Article destroyed by negligence - Whether the owner is entitled to recover

the market value or the value at which the article was bought.

Tort - Damages - Whether substantial damages can be recovered without proof of

actual loss. C

-Headnote

The appellant was a legal tenant of the respondent. Without lawful cause,

respondents evicted the appellant from his flat, the eviction being effected in the

absence of the appellant by forcing open the door and removing household items

therefrom. The D respondents admitted the unlawful eviction, but no reinstatement

to the flat nor alternative accommodation was offered. Household items removed

from the flat during eviction were never returned, including a refrigerator and a gas

cooker. The appellant sued in the District Court for recovery of the items or shs

197,875/- as replacement value; Shs. E 2,125/= being special damages incurred to

repair the damaged articles; general damages in excess of shs. 20,000/=, and a

declaration that he is entitled to alternative accommodation. The District Court

awarded him the said shs. 2,125/= as special damages and decreed that he was entitled

to alternative accommodation. The claim of F shs. 197,875/= as replacement value

was dismissed, but the court awarded him shs. 29,162/=which was the cost of said

articles when he bought them in 1974. The claim of shs 20,000 as general damages

was rejected. Hence this appeal. G

Held: (i) Where an article has been destroyed by negligence, the owner of that article

is entitled to recover from the person who negligently caused the destruction the

market value of the article.

(ii) Where there is trespass to goods, substantial damages can be recovered

without proof of actual loss. H

Case Information

Appeal allowed.

Cases referred to:

1. Express Transport Company Ltd. v B.A.T. Tanzania Ltd. [1968] E.A. I

443 (at 451).

1988 TLR p60

MSUMI J

2. Interoven Stove Company Ltd. v Hibbaid and Another [1936] 1 All ER

A 263

3. Kassaali Bhogadia v M.A. Nasser [1963] EA 610.

Mabere Marando, for the Appellant

Rweyemamu, for the Respondent B

[zJDz]Judgment

Msumi, J.: At the material time appellant was a legal tenant of the respondents'

corporation occupying flat No. 187/X along Uhuru/Kigogo roads, Ilala area. It is C

uncontroverted that on 10/9/75, without lawful cause, respondents evicted the

appellant from the said rented flat. The eviction was effected in the absence of the

appellant by forcing open the door to the flat and removing the households from

therein. Though later on respondents admitted of the alleged unlawful eviction, they

did not redress the wrong. D In other words appellant was neither reinstated to the

said flat nor was he offered an alternative accommodation equivalent to the one in

question. And despite the appellant's demand, respondents failed to restore to him

some of his household items which they removed from the rented flat when they

effected the said unlawful eviction. Among these E missing items is a refrigerator

and a gas cooker. Hence appellant sued the respondents in the District Court praying

for recovery of his missing household items or shs. 197,875/= as replacement value of

the said items; shs. 2,125/= being special damages incurred by him in repairing some

of his articles returned to him in damaged condition; F general damages in excess of

shs. 20,000/= and a declaration that he is entitled to alternative accommodation

reasonably equivalent to one from which he had been unlawfully evicted. The

District Court sustained the appellant's prayer for shs. 2,125/= as special damage and

for the declaratory order that he is entitled to alternative G accommodation.

However, his claim for shs. 197,875/= being the replacement value of his missing

articles was dismissed and instead the court ordered that he was only entitled to be

paid shs. 29,162/= which was the cost of the said articles when he bought them

sometime in 1974. Similarly, his claim for general damages in excess of shs. 20,000/=

H was wholly rejected. This appeal is against these two findings.

The memorandum of appeal consists of two grounds. Elaborating the first ground Mr.

Marando, the learned counsel for the appellant argued that the learned trial

magistrate I erred in awarding the appellant the cost of the missing items instead of

their replacement value. The aim should be to put the appellant in the

1988 TLR p61

MSUMI J

same position he had been immediately prior to the unlawful seizure of the goods.

And A this goal can only be attained by awarding him an amount of money

equivalent to the value of the said items at the time when they were taken. On the

second ground of appeal, the learned counsel submitted that the circumstances of the

case are such that B appellant is entitled to damages in excess of shs. 20,000/=. In

reply, Mr. Rweyemamu from the Tanzania Legal Corporation argued that what the

appellant was entitled to is the actual cost of the alleged goods and not their

replacement value. Farthermore the court could not award him the replacement value

of the goods in the absence of specific proof C of the alleged value. Similarly, the

learned counsel went on to argue, the court was right in refusing the prayer for

general damages in excess of shs. 20,000/= as the appellant has failed to establish that

he has suffered any damage at all. D

Starting with the first ground of appeal, in essence what the appellant is saying is that

he wants the respondents to return to him his missing household articles in the same

condition as they had been at the time when they were taken. In the alternative, if

for reasons known to themselves respondents are unable to return to him the said

items, E then they should pay him some money equivalent to their market value at

the time when they were seized. With respect this prayer is both legally and logically

sound. It is consistent with the rationale of awarding damages to a victim of a civil

wrong. As far as money can possibly do, plaintiff should be restored in the same

condition he had been F immediately before the alleged actionable wrong was

committed by the defendant. In the absence of reasonable explanation from the

respondents on the whereabouts of the articles in issue, it is logical to assume that the

same have been neglegently destroyed by the respondents. In such circumstances the

law is quite clear viz. that the owner of such G articles is not only entitled to be paid

the market value of such articles immediately before their destruction but also he may

be paid any consequential loss resulting from such destruction. This expression is

supported by the holding of the then Eastern African Court of Appeal in the case of

Express Transport Company Limited v B.A.T. H Tanzania Limited [1968] E.A. 443 at

p. 451 which says:

Where an article has been destroyed by negligence, the owner of that article is

entitled to recover from the person who negligently caused the destruction the

market value of the article I immediately before its destruction, together with any

1988 TLR p62

MSUMI J

consequential loss following on the destruction of the article which is not too

remote. A

Thus appellant's claim for the market value of his missing articles at the time when

they B were seized is consistent with a recognised principle of law. The only

question in this case is whether appellant has managed to establish that at the time

when they were taken, the said articles were worth shs. 197,875/=. These articles

were taken on 10/9/75 and according to the testimony of the appellant they were

bought sometime in 1974 for shs. 29,162/=. What the appellant is saying is that within

a period of about one C year the value of these goods appreciated to shs. 197,875/=. If

I may rely on my elementary knowledge in mathematics, this appreciation is about

1000 per cent. I take note of the fact that among the missing articles was a

refrigerator, a gas cooker and D some musical gadgets whose value normally

appreciates with time. However, I don't agree that within a span of only one year the

appreciation of these goods was as much as 1000 per cent. There was an increase in

value but not as much as that. It is a historical fact that from the year of independence

to sometime in 1978 when we were forced into E the war against dictator Amin's

forces, the country had been enjoying reasonable economic tranquility. Unlike the

years which followed thereafter, there had been no soaring rises of costs of consumer

goods. Hence in this case taking into account the nature of the alleged missing goods I

am of the opinion that an increase of 20 per cent of F the original cost is reasonable.

Accordingly appellant is entitled to shs. 36,000/= as replacement value of the articles

in question immediately after they were unlawfully seized by the respondent about

one year after they were bought.

As for the claim of general damages in excess of shs. 20,000/= I think it ought to be G

upheld. Contrary to the view held by the learned trial magistrate, in order to succeed

on this prayer appellant was not required to prove actual damage. In the English case

of Interoven Stove Company Limited v Hibbard and Another [1936] 1 All ER at p.270

the court said: H

An illegal distress has always been a trespass and an action would always lie

...... And where there is a trespass to goods, though no actual damage results, the law

gives a right to recover damages not limited to actual damage sustained, but a right to

recover substantial damages I even though there be no proof of actual loss ......

1988 TLR p63

This observation was quoted with approval by the Eastern African Court of Appeal in

A Kassamali Bhogadia v M.A. Nasser [1963] E.A. 610. On my part I would add by

saying that this principle is not only restricted to trespass to goods but it also extends

to unlawful denial of one's right of use of land or premises. Thus in the present case

whether or not appellant has suffered actual damage, he has the right to recover B

substantial damages consequential to respondent's acts of trespass to his goods and the

rented flat. Inclined to this view I am awarding the appellant shs. 100,000/= as general

damage.

All in all this appeal succeeds with costs. C

Appeal allowed.

1988 TLR p63

D