Ezekia s/o Simbamkali v. R., E.A.C.A. Crim. App. 30DSM-72, 18/7/72.

Ezekia s/o Simbamkali v. R., E.A.C.A. Crim. App. 30DSM-72, 18/7/72.

Held:   (1) Notes made by witness may be used to refresh his memory but are not in themselves admissible in evidence.

(2) Where the prosecution seeks to rely on a confession the burden is entirely on the prosecution to prove that it was voluntary.

(3) At a trial within a trial to determine the admissibility of a confession, the prosecution should call all persons able to give relevant evidence, including the person to whom the statement was made, and the interpreter, if any, and these witnesses may be cross-examined by the defence.

(4) Where, after a trial within a trial, a statement is held to be admissible, the prosecution evidence regarding it is given again in the presence of the assessors, and the witnesses are again cross-examined because, although the issue of admissibility has been decided, the circumstances in which the statement was taken may affect the weight to be attached to it.

(5) The confession of one accused implicating his co-accused can only add the final assurance to an already strong case.

SPRY, V. P. – The two appellants were convicted of murder and sentenced to death. They were alleged jointly to have killed on Zachariya s/o Simbamkali.

The case again the first appellant, Ezekia s/o Simbamkali, a brother of the deceased, depended almost entirely on a confession he is alleged to have made to a Justice of the Peace, Allen Mbuke. No question was raised by the advocate for the appellants, Mr. Patel, when this witness, [Allen Mbuke], began to testify, indeed, it would seem from the record as a whole that he cannot have received proper instruction. The witness is recorded as saying that Ezekia was taken to his office to made a statement. He went on “I recorded the transaction as per notes I took which I produce” and these were admitted as Exh. P.1. This was gravely irregular for a start. The witness might have been permitted to use the notes to refresh his memory but they were not, in themselves, admissible in evidence.

The learned judge then asked Mr. Patel if he wished to object to the introduction of the statement and received a negative reply. Ezekia himself, however, said that he had made the statement because he was beaten. The learned judge rightly decided to hold a trial within a trial. Ezekia was called to give evidence, although Allen Mbuke had given no evidence as to the circumstances in which the statement was made, the defence had had no opportunity to cross-examine him and the interpreter who had acted in the matter had not been called.

When Ezekia had given evidence-in-chief, the learned judge gave his ruling. So far as the record goes, Ezekia had not been cross-examined and had not been asked if he wished to call any witness. The learned judge remarked that the Justice of the Peace had given evidence that he had been satisfied Ezekia was a free agent and had no recent marks of injury on his body. This, according to the record, is not true; presumably, it is a reference to the “notes”. He concluded that as Ezekia could not name or identify the people he alleged had beaten him “and in view of the unreasonableness of his story”, the confession was to be admitted.

            With respect, we think these grounds are unsatisfactory. In an ordinary, humble, citizen is beaten by police or local authority askaris, it is very likely that he would not know the names of the individuals involved and although the beating of prisoners is most reprehensible, we know that it does happen and therefore that such allegation cannot lightly be dismissed.

            What is however, much more serious is, as Mr. Lakha, who appeared for the appellants, submitted, that it is impossible, from a perusal of the record, to avoid the conclusion that the learned  judge placed the burden on Ezekia of proving that this statement was not voluntary. It is well established that where the prosecution seeks to rely on a confession, the burden is entirely on the prosecution to prove that it was voluntary. This was a most grave error.

            It may be desirable to set out again the procedure to be followed at these trials within trials. Immediately it is known that the admissibility of a statement is to be challenged, the assessors should be asked to retire. This should, whenever possible, happen before any mention of a statement has been made, the usual procedure being for defence counsel to inform the court that a question of law needs to be considered. The prosecution then calls all the witnesses available to prove that the statement was made voluntarily and according to law, including the person to whom the statement was made, the interpreter, if any, and any other persons who can give relevant evidence or to make a statement from the dock, and to call witnesses, whose evidence will be limited to the issue of the admissibility of the statement. On this issue, the burden of proof is wholly on the prosecution. The judge gives his ruling in the absence of the assessors, who then return to court. If the statement has been held to be admissible, the prosecution evidence regarding it is given again and the witnesses are again cross-examined, because, although the issue of admissibility has been decided, the circumstances in which the statement was taken may affect the weight to be attached to it and for this reason the assessors are concerned with them.

            If this confession is excluded, as we think it must be, very little evidence against Ezekia remains. It appears that, after the body of the deceased had been found, some three months after the murder, Ezekia handed to the police a hammer and a rungu which were in his house and which are alleged to have been used in the killing. Even on this matter, there is some conflict of evidence between two police witnesses. Ezekia was also implicated in a confession made by his co-accused and ultimately retracted. It is well established that such a confession can only add the final assurance to an already strong case. It could not serve to establish common intent and if Ezekia’s confession is excluded, there is no substantial evidence to prove any common intent and the only direct evidence is that Ezekia entered the house of the deceased after the latter had been assaulted by the second appellant and received what may will have been the fatal wound.

            Ezekia elected to make an unsworn statement from the dock. In his summing-up to the assessors, the learned judge described this as adoption of his earlier confession. With respect, we cannot agree. We do not; of course know the actual words he used in his own Language, but as interpreted and recorded we think the substance of his statement was, that as the court had accepted the alleged confession, it was useless for him to say more.

            In view of the apparent misdirection on the onus of proof in the trial within a trial, and the lack of evidence that the alleged confession was voluntary, and the paucity of other evidence against Ezekia, it would clearly not be safe to allow his conviction of stand. The case against him raises a very grave suspicion, but that is not enough. His conviction is quashed, and the sentence passed on him is set aside.

            There was, however, eye-witness evidence against Iddi, given by the widow of the deceased, Tulanyalika. She said that Iddi entered their house, had some conversation with the deceased and then, for no reason, struck him on the head with a hammer. She ran out, meeting Ezekia, who was entering the house. She ran to the house of Ezekia, and told his wife what has happened.

            The learned judge rightly said that the evidence of Tulanyalika needed to be approached with caution. She did not report what has happened to the police, or to the ten-cell leader whom she knew, or to the deceased’s brother who was searching for him. We think her evidence should be regarded on the same lines as that of an accomplice.

            Idd elected to make an unsworn statement from the dock. This again is curiously contradictory. He began by saying “It is true that I killed the deceased”. He went on “What I told the area secretary was true”. He then changed his story completely and alleged that he had been drunk and that it was Ezekia and Tulanyalika, who had killed the deceased and hidden his body.

            Although there are aspects of the case against Iddi that have caused us some anxiety, we think his statement at his trial, taken with his confession to Allen Mbuke and the evidence of Tulanyalika, taken together, leave no reasonable doubt of his guilty. His appeal is dismissed.

241. B. A. Minga v. Mwanachi Total Service Station, Shinyanga and Total (T) Ltd., H.C. Civ. Case, 18-M-68, 18/8/72.

            The plaintiff sued the defendants for damages for their alleged negligence. The plaintiff was the owner of a house at Shinyanga which was occupied by a number of tenants. On the material date, one of the occupants purchased one gallon of what was believed to be pure unadulterated kerosene from the kerosene pump at the petrol station owned by the first defendant. The kerosene was supplied by the second defendant. Later that evening, observing that his light was growing dim, one of the occupants of the house attempted to fill it, while it was still alight, with the kerosene purchased earlier. There was an explosion followed by a fire and the building was almost

completely destroyed. An analysis of the liquid sold from defendant’s kerose pump showed that it consisted of 82.4% kerosene and 17.6% petrol. The court found that this mixture was highly inflammable and combustible and a dangerous substance to sell to consumers for ordinary household use, especially for lanterns. The court also found that it was this dangerous mixture which caught fire, exploded and caused the house to burn down.

Held:   (1) In a suit for negligence, a plaintiff must alleged in the plaint and prove (a) the existence of a duty of care; (b) the breach this duty; and (c) resulting damage.

            (2) A plaint, although badly drawn, should not be struck out, if it contains sufficient allegations of fact to show that there are serious issues or difficult questions of law to be decided.

            (3) Once the plaintiff had shown that the liquid sold as pure kerosene was in fact a dangerous mixture, the inference was that its presence was due to someone’s fault and it was for the defendants to show that the fault was not theirs.

            (4) The law imposes a duty to take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure persons so closely and directly affected that one ought reasonably to have them in contemplation.

            (5) The nature of that duty varies according to whether or not the act involves a thing dangerous in itself.

            (6) Liability does not depend on whether the defendants were manufacturers or distributors or both, but on whether they had put themselves in direct relationship with the consumer.

            (7) In this case, the defendants owed a duty of care to the consumer, which consisted of taking precautions so that the substance sold as kerosene is not contaminated or made dangerous, a duty which they did not carry out.

            (8) Where pleadings do not particularize special damages, the ‘modern approach’ is to allow them to be proved although not specifically pleaded, if the pleadings clearly show a claim for special damages.

            (9) The opinion of an engineer not specially qualified to assess damages caused is acceptable on the issue in view of the shortage of experts in the country.

            EL-KINDY, J. – [The court discussed the issues of fact summarized above and continued].

The next issue was framed to find out “who made the mixture,” and this issue raised the question of burden of proof in such cases. It is clear from decided cases that the plaintiff has not only to allege (a) the existence of a duty of care; (b) the breach of such duty of care; and (c) the resultant damage in his claim. This court already heard a submission of no cause of action raised by the learned defence counsel. However, the defendants were not satisfied with the ruling of my learned brother, Mr. Justice Mnzavas, Ag. J. (as he was then), appealed to the Court of Appeal and the Court of Appeal upheld the ruling of this court in their judgment in Civil Appeal No. 13 of 1971 MWANANCHI SERVICE STATION AND TOTAL TANZANIA LIMITED v. B.A.MINGA (unreported). Although the Court of Appeal agreed with the learned defence counsel that the “plaint was badly drawn,” the learned judges did “not think a plaint should be struck out, if it contains sufficient allegations of fact to show that there are serious issues to be decided between the parties and particularly not where there are difficult questions of law to be decided.” It is, therefore, not open for me to reopen a decided point, but it is clear that if the plaintiff’s counsel wanted, he could have applied for and probably be permitted to present an amended plaint so as to remove the defects mentioned. However, the learned counsel for the plaintiff did not do so. The learned defence counsel complained against this. I can do no more than note that the defects had not been cleared, and the suit stands for decision with all the attendant defects and problems. On the issue now before me, it was for the plaintiff to show that the liquid sold to him was the mixture he alleged it to be and since the mixture came out of the pump of the petrol station of the first defendant with liquid supplied by the second defendant on a hospitality basis from another company, the burden of proof is upon the defendants to rebut the allegation. The mixture could only be there as a result of some one’s fault and having found that the mixture came from the stated kerosene pump the plaintiff discharged the burden of proof placed on him and it was for the defendants to show that the fault was not theirs. (See GRANT v. AUSTRALIAN KNITTING MILIS (1936) A.C. 85 per Lord Wright). Neither the first nor the second defendant led any evidence to show that the liquid from the kerosene pump was kerosene pure. Instead Damji (D.W.1) who spoke on behalf of the first defendant, said that some kerosene was sold to customers on 11-12^th August, 1968, 10-11^th August, 1968, 8-9^th August, 1968, 12-13^th August, 1968 as the station daily records (Exhibit D.5) showed and that the last quantity received was 650 gallons from the second defendant which was delivered on the 26^th July, 1968. The implied meaning was that if so much kerosene was sold on various dates without any complaint from customers, the irresistible inference was that the kerosene sold could or was not adulterated. With respect, the inference is not necessary, as there could be several explanations why customers who bought the liquid on these dates did not complain. It does not even mean that therefore, there was no complaint or that the kerosene was in saleable state. A petrol attendant was on duty at the said petrol station, but his person, who, probably, would have aided the defence cases, was not called to give evidence as it should have been done if he supplied the saleable kerosene. Nor did the Manager of the petrol station give evidence. It was said that he had left the country. It is rather odd for him to leave at such a time when he knew that there was pending a civil suit against his firm. Having regard to the evidence led, I find the first defendant did not discharge the burden of proof imposed on it.

            For the second defendant, Nasser (D.W.2) described the procedure of supplying kerosene to the first defendant. He said that every product has a different storage tank, and since they are separate, there was “no possibility or likehood of the products mixing,” and that the intake and outtake is done under the supervisor of the depot manager. He said that every Total Petrol Station, or any such station, maintains a separate tank for each type of petroleum product and that these tanks remain the property of the supplying company. In this case, these tanks remain the property of the second defendant. He said that each separate tank had its own pump, and that petrol cannot come from the pump of kerosene. To that extent, that will be true, but it does not take into account the fact that the kerosene may have been contaminated before it was filled in the correct tank or the correct tank was itself defective. Hence, petrol could come out of a kerosene pump, if that was the substance added to the kerosene. Be that as it may, the said witness continued to say that the product will go to the consumer in the same state as it left the depot pump, so that the first defendant had no opportunity to interfere with the product. As a result, the kerosene supplied could not have been checked by the first defendant to find out if the product supplied was contaminated, the first defendant would not have known of this. I accept this general description of the process of supplying petroleum products to petrol station owners but it is not an adequate defence, in the circumstances of this case as there is no necessary connection between the general description and the depot at Tabora from which the kerosene came. There is no evidence to show that (a) the kerosene tank at Tabora conformed with the general description given, and (b) that the same kerosene tank was not defective of could be inferred to have been free of defect. In my view, the burden of proof has not been free of defect. In my view, the burden of proof has not been discharged by the second defendant either.

            It was stated, and this can be seen from the mere perusal of the plaint (Para 5 thereof), that the plaint was defective. It did not state that the mixture was dangerous. This is correct, but this court, unfortunately for it, has to decide this case nevertheless. The evidence disclosed that the mixture was dangerous in itself, and there seems to be placed a higher duty of care in such cases. However, I would like to refer briefly to the general duty of care as stated in the notorious case of M’ALISTER DONOGHUE v. STEVENSON (1932) A.C. 562. I shall quote passages from this judgment to the extent that they are relevant to this suit. At p. 580 Lord Atkin discussed the concept of a general duty of care when he said: “At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instance. The liability for negligence, whether you style it such or treat as in other systems as a species of “culpa” is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code ensures cannot in a practical world be treated so as to give a right every person injured by them to demand relief. In this way rule law arise which limit the range of complaints and the extent of remedy. The rule that you are to love you neighbour becomes in law; you must not injure you neighbour, and the lawyers’ question, who is my neighbour? Receives a restricted reply. You must take foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seem to be – persons who are so closely and directly affected by my act that I ought reasonable to have them in contemplation as being  so affected when I am directing my mind to the act or omissions which are called in question”. The general principle has been applied and sometimes even modified in various decisions in England, but I do not consider it necessary to review them generally having regard to the case in had. Suffice to say that the quotation is a useful guide in this case as in others.

            At page 583, the said Lord Atkin gave his opinion in connection with “articles of common household use,” and kerosene, is such a common household article in this country. He said: “I confine myself too articles of common household use, where every one, including the manufacturer, knows the articles will be used by other persons than the actual ultimate purchaser – namely, by members of his family and his servants, and in some cases his quests. I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong.”

            Later on, at page 595, the same learned judge considered the distinction made between dangerous and non-dangerous things. He said: “I do not find It necessary to discuss at length the cases dealing with duties where the thing is dangerous, or, in the narrower category, belongs to a class of things which are dangerous in themselves. I regard the distinction as an unnatural one so far as it is used to serve as a logical different ion by which to distinguish the existence or non-existence of a legal right”.

            And he agreed with the opinion of Scrutton L.J. in the case of HODGE &SONS v. ANGLO-AMERICAN OIL CO. (1922) 12 LL. L. Rep. 183. I think the learned judge saw the difficulty involved. In this case, pure kerosene is not dangerous in itself for the reason that the flash point was high, but the mixture of the kerosene with petrol was a dangerous substance as its flash point was low.

            This is probably a clear distinction since kerosene’s flash point is 44 ⁰ C while that of petrol is 12 ⁰ C, but it would probably cause a serious argument if the range had been one of a few degrees only. However, the distinction is well established. In the case of DOMINION NATURAL GAS CO. LTD. v. COLLINS AND PERKINGS, (1909) A.C. P. 640 at p. 646 Lord Dunedin said: “What that duty is will vary according to the subject matter of the things involved. It has however, again and again been held that in the case of articles dangerous in themselves, such as loaded firearms, poisons, explosives and other things ejusdem generis there is a peculiar duty to take precautions imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity. The duty being to take precautions, it is no excuse to say that the accident would not have happened unless come other agency than that of the defendant had

Intermeddled with the matter. A loaded gun will not go off unless some one pulls the trigger, a poison is innocuous unless some one takes it, gas will not explode unless it is mixed with air and then a light is set to it ….. on the other hand, if the proximate cause of the accident is not the negligence of the defendant, but the conscious act of another volition, then he will not be liable. For against such conscious act of volition no precaution can really avail.”

            And liability does not depend on whether the defendants were manufacturers or distributors or both, but on whether they had put themselves in direct relationship with the consumer. I would adopt with approval the words of Stable J. in the case of WATSON v. BUCKLEY & ORS. (1940) 1 All E.R. page 174 wherein the learned judge said: “I do not think that it matters whether the man is a manufacturer or whether he is a distributor. It seems to me to be the same in the case of a person through whose hands there has passed a commodity which ultimately reaches a consumer to his detriment. Where that person has intentionally so excluded interference with, or examination of, the article by the consumer, then he has, of his own accord, brought himself into direct relationship with that consumer so as to be responsible to the consumer for any injury the consumer may sustain as a result of the distributor’s negligence. The duty is there.”

            On the evidence, it is clear that the defendants owed a duty of care to the consumer. That duty consisted of taking precautions so that the substance sold as kerosene is not contaminated and made dangerous by their negligence. The defendants knew, or ought to have known that, this duty of care existed, and that, in this case, the consumers needed kerosene pure and not kerosene with something else for which they had not bargained. It seems to me to be irrelevant whether Nkangawabagwe or Bujibu, or both of them, were tenants, servants, or agents of the plaintiff. They were simply visitors.

            This simple fact did not make the substance sold to the occupants any less dangerous than it was. Their duty was towards the consumer, and the defendants ought to have known that by selling such a mixture to visitors of the house of the plaintiff, damage was likely to occur if the substance was used. They had, therefore, brought themselves into direct relationship with the plaintiff through their own conduct. It is also to be noted, on the evidence, that the substance alleged to be kerosene could not, nor was it expected, to be examined by the purchasers so as to satisfy themselves that the substance was well and truly pure kerosene. The evidence further showed there was no external interference by a third party – e. i. novus actus interveniens which the defendants could rely on. I agree with the learned defence counsel that it was not pleaded that the substance reached the consumer in the state it left the kerosene pump, but, with respect, I cannot agree that there was no evidence to show that it reached the house of the plaintiff in the state it left the kerosene pump. In this respect, there was the evidence of Nkangawabagwa which showed that he took the liquid directly from the said petrol station to the house of the plaintiff. The liquid, admittedly, was not sold in a sealed container. And it was not supposed to be sold while in a sealed container. 

It appears that a customer would call at such pump, and buy the liquid as it came out of the pump and put into the container. It was not or the plaintiff to prove that the manner of carrying the liquid to the petrol station was defective. As I have said it was his duty to show that the liquid he bought was not kerosene, as he did, and leave it to the defendants to put in their defence. It would be most unreasonable to expect a consumer to know and to expect him to prove the inside working of the two defendant companies. It was for these two companies to how that the mixing up could not have occurred when the liquid was in their possession. I find, therefore, that both defendants were in breach of a duty of care. They were negligence in selling a dangerous mixture to the occupants of the house of the plaintiff, when they knew that he purchaser was likely to use the liquid for domestic purposes as kerosene. There was nothing to suggest that the liquid was dangerous. And if the defendants did not know the nature of the liquid sold, then they were more than negligent in the matter, as this would indicate that they did not even take the reasonable care to make sure that the liquid which they sold as kerosene was in fact kerosene. Nkangawabagwe did not know the nature of the liquid. Nor was he expected to know of this. Like any reasonable consumer, who buys kerosene off a kerosene pump at a petrol station, he had no reasonable cause to suspect that the liquid he bought was not pure kerosene. He relied on the distributors and he cannot be blamed for this.

            Let me turn now to the question of damages sought. Paragraph 6 of the plaint reads. “On or about the 11^th day of August, 1968 at about 10 p. m. the said plaintiff’s tenant and/or agent poured some of the said  kerosene in his lamp and lit the same whereupon the said kerosene caught fire which spread to the ceiling board of the house and caused extensive damage to the extent of Shs. 33,600/= to the plaintiff’s house as shown in the report of the Regional Engineer, Shinyanga which is annexed hereto and marked exhibit ‘A’ to which the plaintiff will crave leave to refer to as part of the plaint.”

            And paragraph 8 sub-paragraph (1) prayed that judgment should be entered in favour of the plaintiff for a sum of Shs. 33,600/=. Neither paragraph 6 nor Para 8 stated whether this was sought as general damages or as special damages. It seems that there is an accepted distinction between general and special damages. The learned author of MAYNE AND MC GREGOR ON DAMAGES, 12^th Ed. At page 813, discusses this concept in some detail in paragraph 970. He states: “In considering how the Plaintiff must deal with damages in his statement of claim, a basic distinction must be made between general damage and damages. General damage consist in all items of loss which the plaintiff is not required to specify in his pleadings in order to permit proof and recovery in respect of them at the trial. Special damage consists in all items of loss which must be specified by him before they may be proved and recovery granted. The basic test of whether damage is general or special is whether particularity is necessary and useful to warm the defendant of the type of claim and evidence, or of the specific amount of claim, which he will be confronted with at the trial.”

            The learned author then quoted the words of Bowen L.J. in RATCLIFFE v. EVANS (1892) 2 Q.B.D. 524 at 528 where the learned judge said that special damage “means the particular damage (beyond the general damage), which results from the particular circumstances of the case, and of the plaintiff’s claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial.” The distinction is accepted by this court. The distinction is based on a requirement that certain claims needed to be specified. I also accept the test stated and I apply it in this suit. It is clear from paragraph 6 of the plaint that the claim to the damage of the house was in the nature of claim to special damages as the defendants were entitled to know the nature of the claim against them although the paragraph was silent on them. To the extent the pleadings were drafted, they were defective, but I would respectfully follow the modern approach stated in the case of LONDON – GRIFFITHS v. SMITH (1950) 2 All ER. 6622 and allow special damages to be proved although this was not pleaded as I am satisfied that the pleadings clearly showed that it was a claim for special damages. The plaintiff therefore had to prove damages. The learned defence counsel submitted that special damages should be strictly proved. I agree that it is the duty of the plaintiff to prove the amount he claims as special damages. I am not sure whether the use of the words “strict proof” adds anything to the accepted burden of proof in civil cases. The issue then is whether the plaintiff has proved the damages he was claiming. In this respect, he relied on the evidence of himself and of Mr.Choto (P.W.10) together with the report prepared by Mr. Choto (P.W.10). The plaintiff said that when he visited his house on the 12^th of August, 1968, he found that the house was destroyed and that he requested Mr. Choto to assess the damage done to his house, and the latter obliged. According to his (P.W.10) evidence and report, the building was I-shaped making two wings – a western wing and an eastern wing. The measurements of the western wing were 64 feet long by 22 feet wide, and 32 feet long by 18¹/₂ feet wide of the eastern wing. These were external measurements. The walls were 10¹/₂ feet high and he floor area was approximately 2000 square feet, and of 28,000 cubic feet. He used the volume as his basic figure and calculated the construction cost of a cubic feet at Shs. 1/50, and this gave him the figure of Shs. 42,000/=. He confirmed that the building was destroyed by fie and that it was built of permanent materials. The foundation was built of concrete although the correct size and depth of the foundation was not given. The whole ceiling was burnt. The windows and doors were damaged by fire. It was found the walls had sustained cracks and weakened in several placed. Some of the cracks were continuous from top to bottom. Mr. Choto said these cracks were caused by fire. In respect of the roof, all the timber was burnt, and the corrugated iron sheets were badly weakened and hey had no support of the trusses. The ceiling was totally burnt, but he could tell that there was a ceiling by the remains of the ceiling on the walls. And finally, he said that the remaining part of the building was weakened. He said that the destruction was approximately 80%. The learned civil engineer was extensively cross-examined on his commissions and omissions when he made the general assessment of the destruction to the building. I do not intend to refer to each of the defects in omissions in this case, but they are all taken into account in assessing his evidence.

However, I would refer to some of the most glaring defects in the evidence. It is clear that Mr. Choto was a civil engineer by profession, and probably most of his omissions arose out of the fact that assessment of the nature he was asked to do was not, strictly speaking, the specialty of his branch of the profession. Probably a quantity surveyor, or architect, or insurance assessor would have been a better person to do the job. But this court has to be realistic about these professional things especially when such evidence is only an aid to the court in its assessment of reasonable damage. One cannot ignore the fact that in a developing country like ours professional of a different specialty are come times called upon to do the job of other professionals due to the well known fact of shortage of experts. Therefore, this court has no alternative but to rely on the evidence of Mr. Choto to the extent that it aided this court to come to a fair conclusion. In my view, there was evidence which clearly showed that damage was done to the house of the plaintiff as a result of the fire which followed the selling of the dangerous mixture of the occupants of the house of the plaintiff. It is clear that the exact cost of the construction of the building is not known. It was completed in 1965. But this, by itself, should not be an impediment to assessment although it is a factor to be taken into account. The house was destroyed in august, 1968 and, therefore, it has been in existence for slightly over two years. By any means, it was still a new house, and the depreciation in value was negligible although it cannot be said that its value had not depreciated. Therefore having regard to the evidence before me and that of Mr. Choto in particular, I find that special damage has been proved on balance of probability. Although his evidence was wanting in so May ways, I cannot say that his assessment of 80% destruction was in any way very high or very low. Having regard to the evidence, thin as it was, I accept the assessment of 80% at the assessed price. I, therefore, assess special damage at Shs. 33,600/= (thirty-three thousand and six hundred only), which the defendants should pay to the plaintiff jointly and severally.

            It is also clear that as a result of the destruction of this house, the plaintiff lost rent due to him every month. For the 8 rooms, the plaintiff was getting Shs. 400/= per month. The plaintiff is entitled to be compensated for this loss. This is also given by way to special damage. The defendants should pay the plaintiff Shs. 400/= per month commencing on 11^th August, 1968 till full payment is made. The plaintiff also prayed for interest on the amount due at the rate of 9% from 11^th August, 1968 till payment is made. I see no reason to withhold this from him. It is accordingly awarded. The plaintiff is also awarded full cost against both defendants.