Tanzania Sand and Stone Quarries v. Omoni Ebi, H.C. Civ. App. 10-DSM-72, 16/8/72.

Tanzania Sand and Stone Quarries v. Omoni Ebi, H.C. Civ. App. 10-DSM-72, 16/8/72.

Held:   (1) The omission by the trial court to frame an issue is not fatal unless it results in a failure to decide properly the point in question amounting to a failure of justice.

            (2) Where a person has been deprived of a liquidated amount or specific goods by the wrongful act of another, he is entitled to interest from the date of filling the suit. Where, however, damages have to be assessed by the court, interest is given only from the date of judgment.

            MWAKASENDO, AG. J. – The court dismissed the substantive appeal from a decision of the Resident Magistrate’s Court, Dar es Salaam awarding damages to the plaintiff/respondent for losses suffered in a motor accident caused by the negligence of defendant/appellant holding on the facts that the negligence of defendant/appellant holding on the facts that the negligence was proved. The following holdings of law concern subsidiary grounds of appeal] I now turn to ground 2 of appeal. Mr. Kapinga in an able and lucid argument, vigorously submitted that the Magistrate’s failure to frame issues in the case was not merely a procedural error but was one which went to the root of the Magistrates decision, - vitiating it. In support of his contention Mr. Kapinga cited authorities ranging from D.F. Mulla on the Indian code of Civil Procedure to some observations= in East African cases. Although the provisions of the Civil Procedure Code 1966 make it clear that it is the prime responsibility of the court to see that issues are framed in every action, it is clear too, that advocates appearing in the action have an equally important duty to see that the requirements of the code are complied with by the Court. In this case, both counsel who have appeared on appeal appeared when the action was tried in the District court and for my part I do not think they should now be allowed to adopt a holier – than – thou attitude and cast all blame for the failure on the Court. That would not be fair and the blame must be shared equally between them and the Court. Now, what is the consequence of the omission in this case, to frame issues? D.F. Mulla in the Indian Code of Civil Procedure, the source of the provisions of our own Code, gives what is in my view, a good answer to the question at page 695 of his work: “Where a material fact stated in the plaint is denied or is not admitted in the written statement, the Court must frame and issue on the fact. What is the consequence of an omission to frame an issue of fact? The answer depends on the following considerations. If, though no issue is framed on the fact, the parties adduce evidence on the fact and discuss it before the court, and the court decides the point, as if there was an issue framed on it, the decision will not be set aside in appeal on the ground merely that no issue was framed. The reason is that mere omission to frame an issue is not fatal to the trial of a suit. But if the point denied in the written statement is not tried at all, or if tried, is tried imperfectly so as to cause failure of justice, the case will in appeal be remanded for a retrial after framing the necessary issue. In other words, omission to frame an issue is an irregularity which may or may not affect the disposal of a suit on the merits.” In the present case, as it may be noted from the plaint, the written statement of defence and the memorandum of appeal and as agreed to by both Counsel for the appellant and Counsel for the respondent, the only important issue for the determination of the Court was whether the plaintiff or the defendant or both of them were negligent. This was the fundamental issue in the case and I think it cannot be said in this case that the omission to frame the issue occasioned any failure of justice. On examination of the entire record in this case, I am satisfied that the parties and the Magistrate were fully aware of what the important issue was in the case. The parties adduced evidence on the issue and this issue was the whole subject. – Matter of the Magistrate’s judgment. I can therefore find no reason to disturb the District Court’s decision on this ground. Ground 2 of appeal similarly fails.

            Next ground to be considered is ground 6. I think the law on the point raised in ground 6 of the appeal is well settled and it is that as laid down by the Court of Appeal in Prem Lata v. Mbiyu (1965) E.A. 592, a case concerning damages for personal injuries. This case has been followed by the Court of Appeal in a more recent case, that is, Mukisa Ltd. v. West End (1970) E.A. 469. In the latter case the Hon. The Vice President of the court, Spry V.P., succinctly discussed the principle that must be followed in this type of case and he said at p. 475 of his judgment: “I think it is clear that the judge had power to make that award, but with respect I do not think he should have done so. The principle appears clearly, I think in the judgment of this Court in Prem Lata v. Mbiyu (1965) E.A. 592. That was a case concerning damages for personal injuries. The principle that emerges is that where a person is entitled to a liquidated amount or to specific goods and has been deprived of them through the wrongful act of another person, he should be awarded interest from the date of filing the suit. Where however, damages have to be assessed by the court, the right to those damages does not arise until they are assessed and therefore interest is only given from the date of judgment.”

            In this case the learned Magistrate awarded interest from 10.10.69 to the date of judgment at 9% and from date of judgment to payment of decretal amount at 7%. I do not think the award of interest prior to the filing of the suit can be supported on the principle discussed by Spry V. P. in the Mukisa Ltd. v. West End case and I am completely unable to see that here is any authority for such an unusual award of interest in the code. I am in any event satisfied that the award of interest prior to the filing of the suit was wrong there being no ground at all to justify it. Appellant’s appeal on this ground therefore must succeed to this limited extent

That in interest shall be 9% from the date of filing the suit to the date of judgment and thereafter until payment of decretal amount at 7% [The court then briefly considered a final ground of appeal and dismissed it]. In the result, save for the limited extent indicated in the judgment where appellant has succeeded, this appeal fails and it is dismissed with costs.