January Mayala v Mazige Mkangala 1983 TLR 268 (HC)

JANUARY MAYALA v MAZIGE MKANGALA 1983 TLR 268 (HC)

Court High Court of Tanzania - Mwanza

Judge Katiti J

September 15, 1984

CIVIL APPEAL 75 OF 1983

Flynote

Contract - Customary law - Whether unavoidable accidents can give rise to civil liability.

-Headnote

The respondent, under a written agreement, hired his hand-saw to the appellant for Shs. 150/= for a month. During the currency of the agreement the hand-saw got lost when a canoe in which the appellant was travelling was capsized and everything including himself were thrown into the lake. The respondent filed a suit in a Primary Court claiming restitution of the hand-saw or its value of Shs. 2,400/=. The Primary Court dismissed the action, but the District Court, on appeal, ordered the appellant to compensate the respondent Shs. 1,200/=, part of the value of the hand-saw. The appellant appealed against the compensation order.

Held: Unless it is a question of strict civil liability which has not been established under customary law, civil liability must be based on proven actionable faulty deviation from an expected and accepted standard of conduct by the defendant and not on acts of God over which man has no governance.

Case Information

Appeal allowed.

No case referred to.

[zJDz]Judgment

Katiti, J.: Mazige Mkangala, the respondent herein filed an action in Ilangala Primary Court, against January Mayala the appellant herein, claiming a restitution of a handsaw, or Shs. 2,400/= the value thereof, that he had by written agreement between him and the appellant on hire for Shs. 150/= for one month, given to the appellant, who claimedly failed to give back the same, after the said agreed upon period. This action was unanimously dismissed with costs by the trial Court, although the appeal was partly H successful, and the District Court, while sympathising with the appellant, ordered that the appellant compensate the respondent Shs. 1,200/= part of the value of the hand-saw - hence this appeal challenging the award.

This case does cover a compass that is both narrow, with facts not seriously contested. I It cannot be denied, that the appellant did on hire and agreement take the respondent's hand-saw, for use as from 17/9/1980, but returnable on or by 20/10/1980. It is also very true that the said hand-saw was never returned on this stipulated day, or beyond. The appellant was straightforward in his defence supported by witnesses in saying, that while he was on his errands for work, in a canoe in which the hand-saw and other work-implements had been loaded, on Lake Victoria, the lake suddenly got violent and lost temper, their canoe unfortunately capsized, and everything including him, were thrown into the lake.

And that, while he was fortunate to come out alive, he could not recover the property that included the hand-saw. Was the appellant liable? On the evidence, as I see it, that the hand-saw was lost in the manner narrated by the appellant cannot be challenged. Again on this evidence, negligence cannot be imputed on the appellant to attract attachment of a suitable civil wrong. Again on the evidence, no evidence exhibiting that under the customary law of the area, if any, the circumstances of the case, did give rise to an actionable wrong, was adduced, nor did the respondent place limitation on the use and place of the said hand-saw, so that the breach of which could attract civil liability. In my view the whole episode was an accident and an act of God over which the appellant had no control; no power, no discretion, and no amount of cautious human care, could change the said course of event. Unless it is a question of strict liability which has not, been established under Customary Law. It is my view that civil liability must be based on proven actionable faulty deviation from an expected, and accepted standard of conduct by the defendant and not on acts of God, over which man has no governance. Such being the case, I am of the view that unavoidable accidents - acts of God - should not give rise to civil liability against the victims thereof. In this case we cannot say the appellant provoked the lake tempers, and we should not punish the appellant, because the consequences of these tempers were to throw him into the lake waters and thus lose a hand-saw. While I do sympathise with the respondent for the loss of the hand-saw, I G find the cause of action unestablished.

The appeal is therefore allowed with costs, and the judgment of the District Court reversed, and the judgment of the Primary Court reinstated.

I  Appeal allowed.

1983 TLR p270

A