North Mara Gold Mine Limited vs Emmanuel Mwita Magesa (Civil Appeal No. 271 of 2019) [2022] TZCA 3068 (18 July 2022)

NORTH MARA GOLD MINE LIMITED V. EMMANUEL MWITA MAGESA 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 (Appeal from the decision of the High Court of Tanzania at Mwanza dated the 8 th 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 North Mara Gold Mine Limited (appellant) challenging the High Court (Gwae, J.) judgment of 08/11/2018, which upheld the decision of the District Court of Tarime awarding the respondent TZS 40,000,000 as general damages for injuries allegedly caused by the appellant’s security guards. The respondent sued TZS 95,000,000 for injuries inflicted by the appellant’s security guards and TZS 4,878,000 for hospital treatment expenses. The respondent claimed that on 03/01/2015, while passing through the appellant’s premises, he was assaulted by the appellant’s security personnel who were chasing other individuals. He was hospitalized and

underwent surgery for liver damage caused by the attack. Prior complaints to the appellant went unaddressed. The appellant denied the claims, asserting that their security guards did not assault the respondent, that any medical assistance offered was humanitarian, and that no liability arose. At the trial, three issues were framed: (i) whether the respondent was injured by the appellant’s employees; (ii) whether he suffered damages; and (iii) what reliefs are appropriate. The trial court, based on testimony from PW1 (the respondent) and PW2, found the appellant vicariously liable and awarded damages. The High Court affirmed the decision, noting that the security guards were identifiable by uniform and conduct, and that the appellant could not escape liability for acts committed in the course of employment. The appellant challenged the High Court on five grounds, questioning the identification of the assailants, vicarious liability, and the quantum of damages. Held: (i) An appellate court will only interfere with concurrent findings of fact if they are unreasonable, perverse, or lead to miscarriage of justice, or where there is a misapprehension of evidence or violation of law. (ii) In civil cases, the burden of proof lies on the party alleging facts in their favor. The respondent successfully proved that the assault was caused by the appellant’s security guards. (iii) The principle of vicarious liability applies: a principal or employer is liable for tortious acts of employees committed in the course of employment. (iv) The High Court correctly held the appellant vicariously liable and that the award of TZS 40,000,000 as general damages was not excessive. Appeal allowed.

Cases referred to: (i) Stanbic Bank Tanzania Limited v. Abercrombie & Kent (T) Limited, Civil Appeal No. 21 of 2001 (ii) Peter Joseph Kilibika and Another v. Patrick AloyceMlingi, Civil l i Appeal No. 37 of 2009. (iii) AmratlalDamodarMaltaser and Another t/a Zanzibar Silk Stores v. A.H. Jariwala t/a Zanzibar Hotel [1980] TLR 31. (iv) Edwin Isdori Elias v. SerikaliyaMapinduzi Zanzibar [2004] TLR 297. (v) Musa Mwaikunda V Republic [2006] TLR 387. (vi) Maria Fred v. MachunguKibotena, Civil Appeal No. 78 of 2005. (vii) SamwelKimaro v. HidayaDidas, Civil Appeal No. 271 of 2018 (both unreported). (viii) Rev. Christopher Mtikila v. The Editor, Business Times & Augustine Lyatonga Mrema [1993] TLR 60.