| dc.description | IN THE COURT OF APPEAL OF TANZANIA
AT MWANZA
CORAM: MUGASHA. J.A. KEREFU. J.A. And KIHWELO. J.A.
CIVIL APPEAL NO. 271 OF 2019
NORTH MARA GOLD MINE LIMITED................. .......................................APPELLANT
VERSUS
EMMANUEL MWITA MAGESA ............................................................. RESPONDENT
(Appeal from the decision of the High Court of Tanzania at Mwanza byGwae. J dated the 8th day of November, 2018 in Civil Appeal No. 43 of 2016)
Civil practice and procedure - Interference of the second appellate court –whether the second appellate court should be reluctant to interfere with concurrent findings of the two courts below.
Evidence law - Burden of proof and standard of proof in civil cases.
Law of Tort - Tortious Liability - Vicarious liability- whether the appellant was vicarious liable.
This is the second appeal by the appellant, North Mara Gold Mine Limited, which is sturdily challenging the High Court (Gwae, J.) by its judgment dated 8.11.2018 which upheld the decision of the District Court of Tarime that awarded the respondent TZS. 40,000,000.00 as general damages for the injuries sustained to the respondent by the alleged appellant's employees. 1 The facts of this appeal are quite simple and straight forward but in order to appreciate the issues of contention in this matter, we find it apt to begin with the essential background of the case. In the District Court of Tarime at Tarime (the trial court), the respondent sued the appellant, claiming TZS. 95,000,000.00 being compensation for the injuries sustained by the alleged appellant's security guards who violently attacked the respondent and thereby causing him severe injuries. The respondent further, claimed TZS. 4,878,000.00 being refund for hospital treatment charges he incurred at Shirati KMT Council Designated Hospital from 3.01.2015 to 2.02.2015. The essence of the respondent's suit as it was pleaded in the plaint is that, on 3.01.2015 the respondent who later testified before the trial court as PW1, was coming back from his daily chores, while being ridden on a motorcycle by ChachaMasicho (PW2). Along the road that travel through the appellant's premises, he encountered what he believes to be three appellant's security guards who were in the appellant's uniforms and they were chasing up some youths from the mine site area. Suddenly, the three security guards ambushed the respondent and started beating him with 2 sticks but also kicked him with their boots on various parts of his body and thus, causing him severe body pain and injury. A little bit later, the respondent who by then was unconscious was taken to Nyamongo Police Station by (PW2), a motorcycle rider and others who did not testify before the trial court. At the police station, he was given PF3 (exhibit P3) and later was rushed to the nearby hospital at Kirati KMT Council Designated Hospital for immediate treatment and one JongoMachage (PW3), a medical doctor treated him by performing surgery and found out that, PWl's liver was damaged something which caused internal bleeding. The respondent was admitted for two weeks for further medical treatment and later he was discharged. As the respondent's situation was not improving, and with the support of the appellant, he was referred to Bugando Hospital for further treatment. He accordingly received the requisite treatment at Bugando Hospital. Previously, before being taken to Bugando Hospital, the respondent registered a formal complaint with the appellant (exhibit PI) who promised to work on it. However, later, the appellant rebuffed the demand. Accordingly, the respondent approached the trial court claiming for reliefs as hinted above. 3 In its written statement of defense, the appellant gallantly denied the respondent's claim. It averred that, her alleged security officers neither attacked nor injured the respondent and that all the respondent's claims were malicious and baseless. The appellant also denied any admission of the respondent's claim, and that the complaint was registered with the appellant's Community Relations Office as a matter of procedure. It was further averred by the appellant that, her decision to conduct medical check-up of the respondent at her clinic and the decision to refer V him to Bugando Hospital for further diagnosis was done on merely humanitarian grounds and as a gesture of good neighborhood to the surrounding community. On that basis, the appellant prayed that the suit be dismissed with costs. At the commencement of the trial, three issues were framed for determination by the court. One, whether the plaintiff was injured by the defendant's employees. Two, whether the plaintiff suffered any damage due to the injuries and three, to what reliefs are the parties entitled to. In seeking to prove his claim, the respondent lined up three witnesses and produced three pieces of documentary exhibits. On the adversary side, 4 the appellant produced three witnesses but did not tender any documentary exhibit. In her judgment, the learned trial Magistrate found out that, it was proven through the evidence of PW1 and PW2 that, it was the appellant's security guards who caused injuries to the respondent and that they were identified by their uniforms and helmets they put on that particular day. The learned trial Magistrate also found out that the conduct of the appellant of not giving feedback to the respondent on the complaint registered and coupled with the support that the appellant gave to the respondent, amounted to admission of liability. She also took into account that the appellant did not produce a single witness from the neighborhood who has ever benefited from the gesture of humanitarian that the appellant claimed to have done to the respondent. She also answered in the affirmative the second issue and finally ordered the appellant to pay the respondent as hinted before. Unamused, the appellant approached the High Court by way of appeal and upon hearing the parties on merit, it dismissed the appeal. The High Court Judge, like the trial court, found it proven upon the evidence of PW1 and PW2 that, it was the appellant's security guards who inflicted injuries on the respondent thinking that he was among the trespassers in the mining area who were being chased. According to the High Court Judge, the appellant's security guards were not only identified by their dress code only but also the evidence that they were the ones who were chasing people from the appellant's mining area. In his holding, the High Court Judge found the appellant vicariously liable for the deeds of his security guards which he held that the appellant cannot escape as such deeds were done in the course of the employment. He therefore, found that the amount of TZS. 40,000,000.00 awarded by the trial court to the respondent was not excessive bearing in mind the extent of the injuries the respondent sustained and the reasons assigned by the learned trial Magistrate. This is what precipitated the instant appeal. The appellant has filed this appeal which is grounded upon five (5) points of grievance, namely: 1. That, the High Court erred in fact in holding that the respondent was assaulted by the appellant's employees. 2. That, the High Court erred in fact and in law in holding that the unidentified assaulters were performing duties of the appellant. e 3. That, the High Court erred in fact in holding that the police of mining were the appellant's security guards in the absence of evidence to that effect. 4. That, the High Court erred in fact and in law in holding that the appellant's failure to document the investigation amounted to admission of liability. 5. That, the High Court erred in fact and in law in falling to hold that the award of TZS. 40,000,000.00 as general damages were excessive.
HELD
(i) An appellate court, like this one, will only interfere with concurrent findings of fact only if it is satisfied that "they are on the face of it unreasonable or perverse" leading to a miscarriage of justice, or there have been a misapprehension of evidence or a violation of some principle of law.
(ii) It is a cardinal principle of law that, in civil cases, the burden of proof lies on the party who alleges anything in his favors.Respondent did not prove the case before the trial court to the required standard.
(iii) The doctrine of vicarious liability is based on the principle that the master or principal is liable for (tortious acts or omissions of his servant or agent, committed in the course of the servant's or agent's employment, being part of the common law, is undoubtedly, part of the law of this country.
Appeal allowed..
Cases reffered to
Stanbic Bank Tanzania Limited v. Abercrombie & Kent (T) Limited, Civil Appeal No. 21 of 2001
Peter Joseph Kilibika and Another v. Patrick AloyceMlingi, Civil l i Appeal No. 37 of 2009.
AmratlalDamodarMaltaser and Another t/a Zanzibar Silk Stores v. A.H. Jariwala t/a Zanzibar Hotel [1980] TLR 31,
Edwin Isdori Elias v. SerikaliyaMapinduzi Zanzibar [2004] TLR 297,
Musa Mwaikunda V Republic [2006] TLR 387,
Maria Fred v. MachunguKibotena, Civil Appeal No. 78 of 2005
SamwelKimaro v. HidayaDidas, Civil Appeal No. 271 of 2018 (both unreported).
Rev. Christopher Mtikila v. The Editor, Business Times & Augustine LyatongaMrema [1993] TLR 60 | en_US |
