Intimate Places Limited & Another vs Peter Gwaydes Gorwa @ Qwydes (Civil Appeal No. 63 of 2023) [2025] TZCA 1126 (16 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: SEHEL. J.A.. MAKUNGU. J.A. And FELESHI. J.A/l CIVIL APPEAL NO. 63 OF 2023 INTIMATE PLACES LIMITED............................................... 1st APPELLANT HERITAGE INSURANCE CO. LIMITED .................................. 2n d APPELLANT VERSUS PETER GWAYDES GORWA @ QWYDES.................................RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania at Arusha) (Mzuna^J.) dated the 16th day of October, 2020 in Civil Appeal No. 37 of 2018 JUDGMENT OF THE COURT 6th & 16th October, 2025 SEHEL, 3.A.: This second appeal is against the judgment of the High Court of Tanzania at Arusha (the first appellate court) in Civil Appeal No. 37 of 2018 that upheld the decision of the Court of the Resident Magistrate's at Arusha (the trial court) that awarded the respondent TZS. 50,000,000.00 being the residual value of the Motor Vehicle with Registration No. T. 665 DBF following loss of a motor vehicle due to car 1

accident and TZS. 118,000.00 being money incurred for valuation charges. A brief factual background underlying the present appeal is to the effect that, on 12th July, 2016, a road accident occurred at Kilimamoja area in Karatu District within Arusha Region. The accident involved the respondent's Mitsubishi Fuso Truck and first appellant's car make Ford Ranger which was insured by the second appellant. It happened that the respondent's car was frontally crushed by the first appellant's car and the driver died instantly, at the spot. Following the said accident, the respondent instituted a suit before the trial court. According to the respondent (PW1), he bought his Fuso in 2014 and had been using it to transport hardware equipment and crops. On 12th July, 2016 at around 22:00 hours, he received an information that his car was involved in a car accident. He visited the scene of crime and saw the Ford Ranger left its lane and crashed into his motor vehicle. His driver by the name of Faustine Kalist (PW5) told the trial court that the driver of the Ford Ranger was driving the car recklessly and crossed into his lane, causing the accident. The traffic police officer, one D. 9967, Corporal Hamad who visited the scene of crime, immediately after the 2

accident, drew a sketch map which was tendered and admitted in evidence as exhibit P5. The respondent also called an engineer from the Tanzania Electrical, Mechanical and Electronics Services Agency (TEMESA), Mr. Melack Elisha (PW2), to establish the value and loss of the motor vehicle. Upon inspection, PW2 concluded that the motor vehicle was beyond repair and its residual value as at November, 2016 was TZS. 86,596,846.00. Another witness who testified for the respondent was a police officer, Erick Rugera (PW4) who inspected the motor vehicle and found out that it was damaged beyond repair. On the other hand, the appellants denied the respondent's claim. Mark Lowslm (DW1), a director from the first appellant's office asserted that their driver was driving at a minimal speed which could not have caused any accident. He said that each of their vehicles were installed with a GPS device in order to monitor speed and movements of their cars. He tendered a GPS tracking report (Skyline) which showed that the vehicle's speed, at the time of accident, was at 44km per hour and it was admitted in evidence as exhibit Dl. 3

Agnes Peter Lema (DW2), an insurance officer from the second appellant's office asserted that, although the first appellant's vehicle had comprehensive insurance, they failed to process any payment to reimburse the respondent because he failed to avail them with necessary documents for payments such as a charge sheet and court judgment which could have established that the first appellant's driver was at fault. At the end of the trial, acting on the police report, the trial court found that the first appellant's driver was careless as the result he caused accident which made the respondent to suffer loss. It observed that the first appellant was insured and had a comprehensive insurance coverage with the second appellant. Accordingly, it entered judgment in favour of the respondent as aforesaid. The appeal by the appellants to the first appellate court was dismissed. Not amused with the decision of the first appellate court, the appellants lodged the present appeal assailing it on the following three grounds of appeal: "1) That the successor trial Magistrate erred both in iaw and in fact in taking over the matter from his predecessor and determined the case without assigning reason (s) for changing magistrate 4

during trial therefore rendered the proceedings, judgment and decree null and void for lack o f jurisdiction. 2) That the High Court Judge erred in law and fact in holding that the driver o f a motor vehicle with registration no. T194 BMS was at fault whilst the negligence o f the said driver was decided by the trial court basing only on the evidence o f the plaintiff's case without considering the evidence o f the defendants. 3) That the High Court Judge erred both in law and fact in failure to hold that the sum o f TZS. 50,000,000.00 which was granted as specific damages was not proved as the required standard." When the appeal was placed before us for hearing, the appellant was represented by Mr. Sheck Mfinanga, learned advocate, whereas, the respondent had legal services of Mr. John Shirima, also learned advocate. The appellants had also filed their written submissions in terms of rule 106 (1) of the Tanzania Court of Appeal Rules (the Rules), in support of their appeal. Upon taking the floor to argue the appeal, Mr. Mfinanga sought leave of the Court to abandon the first ground of appeal and for the 5

remaining grounds of appeal, he adopted the written submissions to form part of his oral submission. He highlighted each of the remaining grounds of appeal in seriatim. On the second ground of appeal, M r. Mfinanga faulted the trial court for basing its decision by looking at the plaintiff's case only that is the testimonies of PW1, PW3, PW4 and PW5. Whereas, he asserted, the defence side brought credible and reliable evidence establishing that the driver of the Ford Ranger was not at fault. He pointed out that a report of the tracking device, which was tendered in evidence by DW1 and admitted in evidence as exhibit Dl, showed the speed of the motor vehicle alleged to have caused the accident was driven at the speed of 44km per hour. Therefore, he argued that it was not possible for such a speed to cause accident. He charged that even the first appellate court did not consider this piece of evidence adduced by the first appellant. M r. Mfinanga punched holes on the evidence of PW3, PW4 and PW5 by arguing that they did not witness the accident as they all arrived after the accident. He referred us to page 103 of the record of appeal, where in his cross examination by the counsel for the first appellant, PW3 replied that he was not present at the time the accident occurred but he was informed by the driver. He also referred us to page 108 of 6

the record of appeal, where in his cross examination by the counsel for the first appellant, PW4 replied that he did not know who caused the accident and did not know who was the investigator and to page 109 of the record of appeal, where PW4 replied that the investigator was better placed to know the source of the accident. It was therefore his submission that PW4 had no direct knowledge of the cause of the accident thus not competent to testify on negligence. He asserted that the entire evidence as to who caused the accident was hearsay and the trial court was not supposed to hold that the claim by the respondent was proven. M r. Mfinanga also attacked the testimony of PW5, the driver of the respondent's motor vehicle that in his cross examination, he replied that he did not tender his driving licence to prove that he was a driver and that, at page 111 of the record of appeal, he said that he had no knowledge on the status of the traffic case. In that case, he argued that the evidence of PW5 puts into question the authenticity of his testimony. Mr. Mfinanga further questioned the authenticity and the accuracy of the sketch map which was tendered by PW3 and admitted in evidence as exhibit P5. He contended that the sketch map admitted in evidence was not the one that was drawn at the scene of crime on 12th July, 2016 7

and witnessed by PW5. In trying to reinforce his submission, he referred us to page 103 of the record of appeal, where in his cross examination by the counsel for the first appellant, PW3 replied that the exhibit he tendered was the one he drew in the morning of 13th July, 2016 while PW5 denied to have signed any sketch map on that next day. He therefore asserted that there were two sketch maps, one prepared on 12th July, 2016 which was signed by PW5 and the one prepared on 13th July, 2016 and not signed by PW5 but tendered and admitted in evidence as exhibit P5. M r. Mfinanga went on to argue that given the prevailing circumstances of the suit, the investigator of the case was a material witness who could have assisted the trial court to know the causer of the accident. He argued that the investigator was not called and no reason was advanced for such failure. He therefore urged the Court to draw an adverse inference against the respondent's case. Mr. Mfinanga concluded his submission by asserting that the finding of negligence on part of the driver of the first appellant was based on an unreliable, an uncorroborated and on incomplete evidence. Arguing the third ground of appeal, M r. Mfinanga submitted that parties are bound by their own pleading. That, according to the

pleadings, the respondent claimed for TZS. 86,596,846.00 as residual value for the motor vehicle but in his entire evidence, the respondent failed to prove the claimed amount. That, the trial court awarded him TZS. 50,000,000.00 as special damages without any basis since the awarded amount was not pleaded in the pleadings nor proved before the trial court. He added that, neither the trial court gave reason for awarding it nor explained mathematical calculation was used to award the same. He wondered why the trial court awarded the amount while it noted the respondent failed to issue any transaction receipt. He stressed that special damages must be specifically pleaded and strictly proved. He argued that since there was no proof, the Court be pleased to allow the appeal with costs. M r. Shirima opposed to the appeal. Responding to the second ground of appeal, he asserted that according to the evidence adduced before the trial court there was no doubt that the Range Rover car knocked the Fuso car. He pointed out that, having witnessed the accident, PW3 drew the sketch map at the scene of crime which was admitted in evidence without objection from the appellants. He added that the evidence of PW3 was corroborated by PW1 who testified before the trial court that the accident occurred at 22:00 hours and he rushed 9

to the scene where he saw the first appellant's car left its lane and crashed into Fuso. In that respect, he asserted that PW3 was credible and reliable witness as he was on patrol on that day and responded to an emergency call and witnessed the first appellant's car moved from its lane and crushed into the respondent's car. He therefore drew a sketch map at the scene of crime which was admitted in evidence as exhibit P5. Mr. Shirima admitted that PW4 was not at the scene of accident but added that his presence at the scene was immaterial. He contended that the evidence of PW4 was to the effect that he was directed by his senior to inspect the motor vehicle which he did and tendered vehicle inspection report (exhibit P6) that contained his findings. That, the said report showed and proved that the respondent's car was damaged beyond repair. Responding to the issue on the failure to call an investigator of the traffic case, Mr. Shirima submitted that the suit filed by the respondent was a civil suit and not a criminal case, thus, the calling of the investigator of the case was not necessary. Besides, he argued that PW3 who responded to the emergency call and witnessed the first appellant's car moved from its lane causing accident, sufficiently established on the balance of probabilities that the first appellant's driver negligently 10

caused the accident. He added that the witnesses for the respondent testified that the criminal charge was not preferred because the causer of the accident died on the spot and that, there was no dispute that the accident occurred. Replying to the third ground of appeal, Mr. Shirima conceded that the respondent pleaded for TZS. 86,596,846.00 but he was quick to add that the trial court awarded TZS. 50,000,000.00 basing on the evidence of PW2 who testified at page 94 of the record of appeal that the purchase value of the motor vehicle in 2014 was about TZS. 82,000,000.00. That, in 2016 it valued TZS. 108,000,000.00 but with the depreciation, in November, 2016 it was worth TZS. 86,596,846.00 as the depreciation was about 20,000,000.00 to TZS. 30,000,000.00 depending on the exchange rate. He submitted that the trial court decided to award TZS. 50,000,000.00 because of the evidence of PW2 despite no receipt was tendered in evidence. Responding on the issue of the cause of accident, he argued that the speed was not the only determinant factor of the accident because there are other causes, such as, the condition of the motor vehicle or a driver might have dozed off while behind the wheel. l i

In rejoinder, Mr. Mfinanga reiterated that PW3 was not a reliable witness as he was not at the scene when the accident occurred. He reiterated that PW3 drew two maps, one at scene of crime but later amended it in the next morning and the amended sketch map was tendered in evidence as testified by PW3 while the accident occurred on 12th July, 2016. He insisted that the sketch map tendered was not signed by PW5 as this witness denied to have signed a sketch map on the 13th July, 2016. Re-joining on the award of T7S. 50,000,000.00 as residual value of the motor vehicle, Mr. Mfinanga reiterated his earlier submission that there was no mathematical assessment in awarding the colossal sum, which was not proved. Having heard the competing arguments from the counsel for the parties, we wish to put it clear that we shall determine the grounds of appeal in the same manner argued by the counsel for the parties. From the parties' submissions in regard to the second ground of appeal the issue was whether the respondent discharged his duty of proving, to the required standard, that the first respondent's driver negligently drove the car hence causing accident. In the third ground of 12

appeal, the issue was whether the awarded amount of TZS. 50,000,000.00 was justified. Before dwelling into determination of the issues, we find it prudent to point out that this being the second appeal, the Court rarely interferes with the concurrent findings of facts by two lower courts. It can only disturb them where it is clearly shown that there has been a misapprehension of evidence, a miscarriage of justice or violation of some principle of law or procedure- see the case of Amratlal Damodar Maltaser & Another v. A.H. Jariwalla t/a Zanzibar Hotel [1980] T.L.R. 31. Further, we wish to re-emphasize the ever-cherished principle of law that the burden of proof lies on the party who alleges as stipulated under sections 117 and 118 of the Evidence Act and such proof, in civil proceedings, is on the preponderance of probabilities. Nonetheless, there are certain instances where a higher standard of proof is required, such as, allegation of fraud - see: for instance, our decision in the case of Omari Yusufu v. Rahma Ahmed Abdulkadir [1987] T.L.R. 169. The counsel for the appellants impressed upon us to find that the decisions of the both the trial court and the first appellate court were not supported by the evidence. He contended that there is no scintilla of 13

evidence proving that the first appellant's driver was negligent and was the one who caused the accident. It was his submission, in order to prove who caused the accident, the respondent was requiredto call the investigator of the traffic case who was the material witnessbefore the trial court as he would have shaded light as to who caused the accident but this witness was not called and no reason was given for such failure. He beseeched the Court to draw an adverse inference for failure to call him. In order for us to adequately determine this issue, we reappraised the entire evidence and noted that the first appellate court adequately considered all these complaints on factual matters argued to us by the learned counsel for the appellants. For ease of reference, we wish to reproduce hereunder the finding of the first appellate court as follows: " Reading the court record and evidence o f PW3 NO. D. 9967 CPL Hamad ' a Traffic Policeman as well as the sketch map (exhibit P5)f it is dear that the driver o f a motor vehicle with Registration No. T. 194 BMS was at fault. PW3 said that: - "... the small car moved from its side and went to the right side which was Fuso's side that is why they knocked each other..." 14

The respondent claimed for compensation o f the value for the said vehicle plus o f hiring another motor vehicle for his business. There was a demand sent by the respondent claiming 50,0000,000/= from the 2n d appellant. The 2nd appellant refused the demand on grounds that there was neither charge sheet nor court judgment showing that the driver o f the insured vehicle was at fault. This is also the same argument they raised during hearing relying on skyline tracking (Exhibit D l) which according to DW1 showed their driver was driving at 44 kilometers per hour, though he admitted after the accident there was no such tracking. He even said the lorry driver ran away after the accident while PW3 said was at the scene when he went there. The trial Magistrate was right to find that the appellant had a right for compensation as the driver with a small car who passed away was at fault. Framing o f charge could not be possible because the driver at fault passed away. So even the argument that the investigative policeman was not summoned is without merit because the Traffic Policeman who drafted the sketch map was summoned." [Emphasis added]. 15

From the above reproduced extract of the first appellate court's judgment, we see nothing to fault it because the complaint that the defence case was not considered by the two lower courts was not supported by the evidence on the record of appeal. As can be garnered from the above, the defence was sufficiently considered by the first appellate court but found it to have less weight than the respondent's case. Besides, according to PW1, PW3 and PW5, the cause of the accident was established to be that the driver of the first appellant moved from his lane to the lane where the respondent's car was passing. It was not about the high speed. As rightly submitted by Mr. Shirima that shift from the lane may be caused by so many factors including dozing of the driver on wheel. Therefore, we find that the complaint that the driver of the first appellant was driving at a minimal speed of 44km per hour was irrelevant to the appeal at hand. Furthermore, as rightly held by the first appellate court, the calling of the investigator was without merit as the police officer who drew the sketh map testified before the trial court. In addition, we have carefully scrutinized the sketch map which was admitted in evidence as exhibit P5 and observed that it was dated 12th July, 2016 and signed by PW5. In 16

that respect, we are not in agreement with the submissions of Mr. Mfinanga that the skech map admitted in evidence was the one drawn on 13th July, 2016. We are alive that the counsel for the appellants challenged the credibilities of PW1, PW3, PW4 and PW5. On this, we wish to state briefly that, usually, the trial court's finding as to the credibility of witnesses is binding on an appellate Court unless there are circumstances on the record which call for a re-assessment of their credibility. However, in the instant appeal, we find that there are no such circumstances as the witnesses have been coherent and consistent not only to their testimonies but also when looking at the entire evidence as a whole. Accordingly, we find no merit in this ground of appeal. We now turn to the third ground of appeal where the counsel for the appellants contended that there was no basis in awarding the special damages of TZS. 50,000,000.00. We do agree that the law on special damages is that they must be specifically pleaded and strictly proved. Our reappraisal of the evidence on the record of appeal, we observed that the respondent pleaded in paraghraph 12 of the plaint for payment of TZS. 86,596,846.00 as a residual value of his damaged 17

motor vehicle. It be noted that there was no dispute that the accident occurred on 12th July, 2016, and that accident involved the respondent's motor vehicle and the first appellant's motor vehicle. Further, the vehicle inspection report which was tendered by PW4 and admitted in evidence as exhibit P6, showed and proved that the damage caused on the respondent's motor vehicle was beyond repair. We gathered from the record of appeal that the respondent called a valuer from TEMESA (PW2) who inspected the motor vehicle and established the value of the respondent's motor vehicle that, it was bought in 2014 at a purchase price of TZS. 82,795,440.00. That, as at November, 2016, its value was TZS. 102,246,058.00 but with the depreciation it was TZS. 86,596,846.00. This witness further explained to the trial court as to how he reached to the said value that he discounted the depreciation costs of about TZS. 20,000,000.00 to TZS. 30,000,000.00 depending on the exchange rate. In that resepct, we find that the claim for special damages was proved by the respondent and the award of TZS. 50,000,000.00 as a residual value in 2018 was well within the range of the depreciation value of the motor vehicle. In addition, we noted that the appellants had no qualm with the award of TZS. 118,000.00 which established that the respondent paid TEMESA for 18

his motor vehicle to be inspected and valued by the said Agency. Accordingly, we see nothing to fault the two lower courts findings. In the end and for all the above reasons, we find the appeal is without merit and it is hereby dismissed with costs. DATED at ARUSHA this 16th day of October, 2025. B. M. A. SEHEL JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 16th day of October, 2025 in the presence of Mr. John Shirima, learned counsel for the respondent also holding brief for Mr. Seek Mfinanga, learned counsel for the appellant and Mr. Musa Amry, Court Clerk; is hereby certified as a true copy of the original. ( ? D. P. KINYWAFU DEPUTY REGISTRAR

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