Mtefu v. Senguo Civ. App. 23-A-71; 23/6/71; Kwikima Ag. J.

Mtefu v. Senguo Civ. App. 23-A-71; 23/6/71; Kwikima Ag. J.

The appellant appealed from judgment of a District Court ordering him to pay Shs. 1.820/- damages for breach of a condition of a lease in failing to give one year’s notice of termination. The grounds of appeal were that the magistrate erred: (a) in admitting the tenancy agreement without requiring the document being impounded and/or properly stamped; and (b) in holding that the respondent was entitled to damages without proof of such damages.

Held: (1) [Citing City Council of Dar es Salaam v. Jaj Mohamed [1968] H. C. D. 287] “[It] is trite law that specific damages must be proved strictly. In this case the respondent never so much as led evidence in proof of the alleged loss of business …… The point is best set out in Halsbury’s laws of England 3^rd Edition Vol XI page 218 Para. 386, “Special damages are compensation for special damage which is not presumed by law to be natural and probable or direct consequence of the act or omission complained of but which does in fact result in circumstances of the particular case and of the injured party’s claim to be compensated ……. Special damages must be claimed specifically and proved strictly, and are recoverable only where they can be included in the appropriate measure of damage.” (2) [Citing s. 45 of Stamp Ordinance prohibiting the admission in evidence of an unstamped instrument which is chargeable with duty] “The agreement attached to the plaint bears no evidence of having been stamped …. The agreement relied upon by the respondent was bad at law, inadmissible and totally unsuitable as a basis for a claim for damages in breach of contract. It is quite clear that without this inadmissible document the learned Resident Magistrate could not have given judgment to the respondent. The inadmissible document ought to have been impounded in terms of s. 45 Cap. 189 to be used only after stamp duty had been levied.” (3) Appeal allowed.