Charles Humphrey Richard Simion and Another vs Dar es Salaam City Council (Civil Appeal No. 303 of 2024) [2024] TZCA 1135 (19 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM; NPIKA. 3.A., MGEYEKWA. 3.A.. And ISMAIL, J.A.^ CIVIL APPEAL NO. 303 OF 2021 CHARLES HUMPHREY RICHARD SIMION KOMBE t/a SIMION BUILDING MATERIALS CO. . ............... . APPELLANT VERSUS DAR ES SALAAM CITY COUNCIL ............................... FIRST RESPONDENT KINONDONI MUNICIPAL COUNCIL.....................SECOND RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (Muruke, J.1 ) dated the 3rd day of January, 2014 in Civil Case No. 156 of 2000 JUDGMENT OF THE COURT 23r d October & 19th November, 2024 NPIKA, J.A.: The appellant, Charles Humphrey Richard Simion Kombe t/a Simion Building Materials Co., filed a lawsuit against the first and second respondents, Dar es Salaam City Council and Kinondoni Municipal Council, in the High Court of Tanzania at Dar es Salaam. The lawsuit was for the following:

"Specific performance o f a promise dated 2n d December, 1998, the sum o f TZS . 107,246,000.00 being compensation for loss suffered by the plaintiff on account o f the defendants' misdeeds and general damages for loss suffered." The trial court dismissed the pleas for specific performance and compensation in the amount of TZS. 107,246,000.00. However, it sustained the claim for general damages, which it set at TZS. 30,000,000.00. Furthermore, it granted interest at a rate of 7% on the decretal sum and the costs of the action. The appellant is currently appealing to this Court, as he is dissatisfied with the outcome. It is imperative to say something more about the background facts and the way the appellant's pleaded case was addressed at the first instance before proceeding to the substance of the appeal. The appellant asserted that in 1993 he set up two points for fabricating and selling cement bricks, one at Msasani along Old Bagamoyo Road and another at Biafra, Kinondoni along Morocco Road in the City of Dar es Salaam after obtaining requisite permits and business licences. After running the business smoothly for over five years, he was surprised that on 25th August, 1998 the facility at Biafra was raided and

ransacked by a band of employees and agents dispatched by the respondents. During the incident, an assortment of bricks, cement bags, construction materials and accessories were damaged or lost, resulting in a loss in the sum of TZS. 47,908,000.00. In response to the appellant's complaint against the alleged unjustified act, and following negotiations between the appellant and the respondents facilitated by the regional functionaries, the first respondent promised on 2n d December, 1998 to allocate the appellant an alternative place of business. The second respondent was specifically directed to effect the undertaking, but, according to the appellant, the promise was never fulfilled. It was the appellant's further claim that on 23rd August, 1999 the respondents, yet again, through their employees and agents raided the Msasani facility claiming that it was an illegal installation. The swoop left the appellant with a loss of TZS. 36,738,500.00 in bricks, building materials and accessories that were damaged or lost. The said employees and agents again invaded the same facility on 27th October, 1999. On that occasion, they impounded and took away a container bearing 880 bags of cement and equipment all worth TZS. 6,900,000.00. In their respective statements of defence, the respondents solidly denied liability. In essence, they asserted that the appellant had no 3

permit or licence for fabricating and selling cement bricks on the road reserve at both installations. While admitting that their officials removed the appellant's properties from the facility at Biafra on 25th August, 1998 as well as from the outlet at Msasani on 23r d August, 1999 and 27th October, 1999, they asserted that the said removal was lawful because the appellant operated the businesses illegally on prohibited areas. Nonetheless, they denied ever damaging the appellant's bricks or any building materials or accessories. On its part, the first respondent particularly admitted having undertaken to allocate an alternative place of business to the appellant, but that he declined or neglected to accept its written proposal on the matter. As regards the appellant's container impounded on 27th October, 1999, the second respondent acknowledged that it was in its possession and that it was ready and willing to release it to the appellant upon payment of accrued transportation and storage charges. The trial court tried and determined the lawsuit on six issues which essentially raised four questions: first, whether removal of the appellant's properties by the respondents was legal; secondly, whether the appellant was entitled to another plot in lieu of the Msasani plot; thirdly, whether the appellant was entitled to compensation for the loss arising from the

removal of the properties; and finally, whether the appellant was entitled to general damages. In its decision, the trial court held that apart from the fact that the appellant operated the Msasani business without any valid permit, he ran the Biafra business unlawfully by selling building materials in violation of the permit (exhibit P4) issued to him for fabrication of bricks. As previously stated, the trial court dismissed the prayer for specific performance. It did so on the reason that the appellant was given an offer of an alternative piece of land by the first respondent vide a letter (exhibit P7) but it declined the offer or neglected to accept it. Similarly, the court scorned the appellant's claim for compensation in the amount of TZS. 107,246,000.00 for want of proof. It expressed that the said genre of damages, being special damages that had to be specifically pleaded and strictly proved, was presented in form of an unsubstantiated list of damaged and lost properties (exhibit P10). It needs to be reiterated that, despite the aforesaid setbacks, the court awarded the appellant general damages amounting to TZS. 30,000,000.00 for the loss of the properties impounded by the respondents combined with an award of interest at a rate of 7% on the decretal sum and the costs of the lawsuit.

The appellant faults the trial court's judgment on four grounds of appeal, which, for clarity, we have paraphrased as follows:

1. That the trial court erred in law for not ordering specific performance against the respondents as per exhibit P7 and the rest o f the evidence on record.
2. That the triai court erred in law in refusing to admit into evidence some o f the documents annexed to the plaint despite the said documents being admissible.
3. That the trial court erred in law for not awarding special and generai damages and for disregarding the values o f the properties itemized in exhibit P10.
4. That the trial court erred in law in failing to properly evaluate the evidence on record thereby reaching an erroneous decision. We find it logical to deal, at first, with the second complaint. On this grievance, the appellant's argument, as presented by Mr. Richard Madibi, learned counsel, was that business licence number B000289215 issued on 6th May, 1998 and ending on 30 April, 1999 for the Msasani installation was wrongly held inadmissible. He argued that the fact that it was issued in the name of Humphrey Richard Komba instead of Humphrey Richard Kombe did not affect its admissibility. He urged us to take into consideration that the document was tendered in evidence by the appellant as PW1 and that he was competent to do so. Besides,

the document was annexed to the plaint and that it was being offered in its original form, hence primary evidence. Referring to page 125 of the record of appeal, Mr. Madibi criticized the trial court for rejecting a permit issued in the name of Simion Building Materials. He was resolute that, given that Simion Building Materials was the appellant's trading name, the alleged name discrepancy did not affect the document's admissibility. Conversely, Mr. Deodatus Nyoni, learned Principal State Attorney, who appeared along with Mr. Kitia Turoke, learned Senior State Attorney and Mr. Daniel Nyakiha, learned State Attorney, representing the respondents, disagreed with Mr. Madibi. Apart from supporting the trial court's rejection of business licence number B000289215 for the name discrepancy, he submitted that, contrary to Mr. Madibi's submission, the other document that was rejected was a business permit dated 3r d November, 1994 shown at page 24 of the record of appeal. The said document, he added, was rightly held inadmissible because it suffered the same name discrepancy. Citing Adam Wamunza v. Kinondoni Municipal Council & Another [2023] TZCA 17512, he submitted that the law stresses the need for a steady and coherent use of names to avoid confusion.

Conceivably, we should begin our determination by setting the record straight. We are aware that, in his argument, Mr. Madibi contested the rejection of business licence number B000289215 as well as a permit issued in the name of Simion Building Materials. He directed us to page 125 of the record of appeal in relation to the latter document. However, we were unable to locate any indication of the purported rejection of the permit. After reviewing the record, it is evident, as Mr. Nyoni contended, that the rejections resulting from name discrepancies were related to business licence number B000289215, which is depicted on page 14 of the record of appeal, and a business permit dated 3rd November, 1994, which is depicted on page 24 of the record of appeal. It is undeniable that the admissibility of a document in a civil proceeding is contingent upon the following: first, the document must be relevant to the subject matter being heard consistent with the provisions regulating relevancy of facts as stipulated by the Evidence Act, Cap. 6. Secondly, a document is admissible if it was either annexed to the pleading or specified as a document to be relied upon. Given that the appellant was the plaintiff at the trial, he could only tender a document in evidence that was either appended to the plaint or specified as a document to be relied upon, as stipulated in Order VII, rule 14 (1) and 8

(2) of the Civil Procedure Code, Cap. 33 ("the CPC")- We note that Order VII, rule 18 (1) of the CPC explicitly prohibits the admissibility of a document that was required to be produced in court by the plaintiff during the presentation of the plaint or to be included in the list to be added or annexed to the plaint but was not produced or entered in accordance with the requirement, unless the court grants leave. Finally, to be admissible, a document must adhere to the provisions of Part III of the Evidence Act, Cap. 6 (sections 63 through 75), which regulate the production of documentary evidence. In summary, these provisions, in addition to regulating proof of the contents of documents through primary or secondary evidence, specify the conditions under which secondary evidence may be admissible as an exception. In the present instance, it is beyond dispute that, in addition to being relevant to the issues framed for trial, the two documents that were denied were not only annexed to the plaint but also proposed for admission as primary evidence to substantiate their respective contents. The admissibility of the documents was a legal issue, which could not have been influenced by the fact that a portion of their contents disclosed a name discrepancy. The issue of whether the licensee, Komba, was a distinct individual from Kombe, the appellant's surname, as indicated in 9

the documents, was a matter of fact that should have been resolved through cross-examination or the presentation of additional evidence to determine whether, for instance, Komba was an innocuous typographical error. The trial court could have determined whether to assign little or no weight to the documents if it had found them questionable by admitting the documents and allowing the parties to discuss their authenticity. Consequently, we find that the two documents were incorrectly rejected. Considering the foregoing result, it is imperative that we ascertain the probative value of the two documents, which, had the trial court admitted them in evidence, it should have considered in conjunction with the other evidence on record. As hinted previously, the Msasani operations were the subject of both documents. It is pertinent to mention that the trial court determined that the appellant operated the Msasani business without a valid permit, in addition to the fact that he unlawfully operated the Biafra business by selling construction materials in violation of the permit (exhibit P4) issued to him for fabrication of bricks. We have meticulously examined the two documents. It is manifest that business licence number B000289215 was issued on 6th May, 1998, for a period of up to 30th April, 1999, to facilitate the sale of construction 10

materials at the Msasani selling point. For all its value, this document unquestionably indicates that the appellant was a licensed dealer in building materials; however, it does not serve as evidence of the legality of his occupancy of the open area at Msasani. The appellant's other document dated 3r d November, 1994, which is referred to as a "business permit/' is not, in fact, a permit for the occupancy of the open area at Msasani. Through it, the appellant was informed by the first respondent that he was permitted to fill his waterlogged Msasani business place with aggregate soil and that there was no objection to his request to connect the business to the mains electricity. Concluding our discussion on the issue at hand, we find merit in the second ground of appeal, which we hereby uphold. However, we hasten to observe, as we must, that this finding is not decisive on the outcome of the appeal. We will now address the first ground of appeal. Mr. Madibi contended, on this ground, that the trial court erred in failing to order specific performance against the respondents, despite the first respondent's explicit promise in its letter dated 2n d December, 1998 (exhibit P7) to provide the appellant with an alternative piece of land. He

disputed the trial court's determination that the appellant did not accept the offer presented in exhibit P7, arguing that the evidence on record demonstrated that the appellant pursued the respondents regarding the promised land in futility. Conversely, Mr. Nyoni concurred with the trial court's determination that exhibit P7 was a promise that was contingent upon the conditions outlined therein, which the appellant neglected to satisfy. He contended that the appellant acknowledged in his testimony that he did not take any action in accordance with the promise. The learned State Counsel cited Louis Dreyfuls Commodities Tanzania Ltd v. Roko Investment Tanzania Limited [2017] TZCA 182 for the proposition that acceptance of an offer must be express, absolute, and unqualified. It is a well-established fact that the first respondent undertook, vide its letter of 2n d December, 1998 (exhibit P7), to allocate an alternative place of business to the appellant. To ensure clarity, we have reproduced the substantive portion of the letter as it translates in English from Kiswahili: RE: REQUEST FOR ALLOCATION OF AN AREA FOR BRICK FABRICATION AND SELLING BUSINESS Please refer to your letter of 12th November, 1998 regarding the above subject.

After considering the details of your letter, I would like to inform you as follows:

1. The area you are requesting measuring 300 meters by 200 meters, which is equal to six acres is too big. In our previous communication to you, we informed you that the Commission intends to relocate all brick dealers from Kinondoni District to one location to prevent invasion of open areas and preserve the environment.
2. Considering your promise that you will move your equipment from the road reserves in Kinondoni (Morocco) and Ubungo to the new location you wilt be allocated; and
3. Considering also that you are willing to pay for the surveying of the area, the Commission is willing to provide you with an area not exceeding one and a half acres for the business. If you agree with the third suggestion above, contact the Kinondoni Regional Director to complete the remaining procedures. You are advised that after being granted a business location, you are also required to complete all legal procedures related to a business licence. The type of business that will be requested for a licence is "making bricks" and not selling "building materials." I wish you all the best. (Sgd. V.K.D. Lyimo) On behalf of the Chairman DAR ES SALAAM CITY COMMISSION. In addition to notifying the appellant of the offer to allocate him one and a half acres of land, exhibit P7 explicitly instructed him to contact the Kinondoni Regional Director "to complete the remaining procedures" if he agreed to the proposal. As to what steps he took in response, the appellant was somewhat contradictory during cross-examination on page

138 of the record of appeal. While he initially asserted that he "made a follow-up on the promised piece of land in vain" he changed tack and asserted that: "I did not communicate again after the letter which gave me an offer o f alternative p lo t " In our opinion, this piece of evidence resolves the issue. Aside from the appellant's failure to provide specifics regarding the purported follow- ups he conducted in response to the offer, he ultimately acknowledged that he did not engage in further communication with the respondents regarding the offer. This suggests that he was unquestionably unresponsive to the offer, We uphold the trial court's determination that the appellant did not accept the offer and instead failed to seize the opportunity. Consequently, there was no justification for imposing a specific performance order on the respondents to compel them to fulfil their promise. The first ground of appeal fails. The third ground of complaint, as previously mentioned, requires us to interrogate whether the trial court erred in law by failing to award special damages and general damages and by disregarding the valuations of the properties listed in exhibit P10.

In his initial submission in support of the aforementioned ground, Mr. Madibi acknowledged that the appellant's prayer for compensation in the amount of TZS. 107,246,000.00 was for special damages. He acknowledged that according to Zuberi Augustino v. Anicet Mugabe [1992] T.L.R. 192, special damages must be specifically pleaded and strictly proven. After examining the testimonies of the appellant and his two witnesses (PW2 and PW3), as well as the inventory of the damaged or lost properties (exhibit P10), the erudite counsel concluded that the appellant had successfully and rigorously established his pleaded loss of TZS. 107,246,000.00. He criticised the trial court for failing to consider exhibit P10, arguing that it was unjust for the appellant to be required to submit receipts to support the values of the damaged or missing materials. Mr, Madibi was unwavering in his belief that the trial court's assessment of general damages was inadequate. He correctly argued that an appellate court may intervene in the assessment of general damages if the trial court applied incorrect legal principles, such as by considering extraneous matter, omitting relevant factors, awarding an excessively high or low amount of money, or if the award is not substantiated by evidence. He cited The Cooper Motor Corporation 15

Ltd. v. Moshi/Arusha Occupational Health Services [1990] T.L.R. 96, Stanbic Bank Tanzania Limited v. Abercrombie & Kent (T) Limited [2006] TZCA 7, and Peter Joseph Kilibika & Another v. Patric Aloyce Mlingi [2012] TZCA 258 to substantiate his argument. Mr. Madibi elaborated that the general damages should have been set at a minimum of TZS. 100,000,000.00, considering the extent of the damaged or lost properties and the respondents' actions that resulted in enduring interference with the appellant's business operations. On the other hand, Mr. Nyoni argued that the appellant had failed miserably to establish the alleged special damages. Based on Zuberi Augustino {supra), he contended that the appellant's listing of the properties that were purportedly lost or damaged was insufficient in the absence of evidence that the items enumerated in exhibit P10 were lost or damaged, along with their respective values. He cited a passage in Strabag International (GmbH) v. Adinani Sabuni [2020] TZCA 241 to substantiate his argument, in which the Court noted that the prices listed in an itemised list of properties in that case were too speculative to be trusted. For the same proposition that the listing of properties is not evidence of their values, further reliance was placed on Charles

Christopher Humphrey Richard Kombe t/a Humphrey Building Materials v. Kinondoni Municipal Council [2021] TZCA 337. Regarding general damages, Mr. Nyoni contended, citing page 10 of the judgment in Charles Christopher Humphrey Richard Kombe t/a Humphrey Building Materials {supra), that no individual should be permitted to profit from their own wrong. Thus, he argued that the appellant was not entitled to receive a general damages award because he conducted business unlawfully on an open space on the road reserve without a permit or licence. The learned counsel for the parties correctly argued that our jurisprudence mandates that special damages must be specifically pleaded and rigorously proved. This Court in Stanbic Bank Tanzania Limited {supra) reproduced Lord McNaughten's definition of special damages in Stroms Bruks Aktie Bolag & Others v. J & P Hutchison [1905] AC 515 at 525 with approval: 'Special damages, '...are such as the law will not infer from the nature o f the act. They do not follow in the ordinary course. They are exceptional in their character, and therefore, they must be claimed specially and proved strictly."

We would like to emphasise that any claim for special damages, when sufficiently particularised or detailed in the plaint, must be rigorously demonstrated, particularly by presenting documentary evidence, such as receipts of payments made to substantiate the alleged loss or economic injury sustained. In Stroms Bruks Aktie Bolag {supra), Lord McNaughten defined the term "general damages" as follows at 525: "'Genera! damages'as I understand the term are such as the law will presume to be the direct natural or probable consequence o f the act complained of." We also agree with Mr. Madibi that the trial court has the discretion to determine the quantum of general damages. The appellate court will not be justified in substituting a figure of its own for the one awarded by the trial court unless it is satisfied that the trial court applied an incorrect principle or misinterpreted the evidence, resulting in a figure that was either excessive or insignificant - see, for example, The Cooper Motor Corporation Ltd. {supra) and Stanbic Bank Tanzania Limited {supra).

For the sake of emphasis, we would like to recall that in SANLAM General Insurance Tanzania Ltd v. Dennis Charles & Another [2024] TZCA 105, we extracted a passage, with approval, from the Kenyan decision in Joseph Kipkorir Rono v. Kenya Breweries Limited & Another, Kericho HCCA No. 45 of 2003 to compare the incidents of special damages and general damages. In that instance, the High Court of Kenya (Kimaru, 1, as he was then) astutely noted that: "In current usage , special damage or special damages relate to part pecuniary loss calculable at the date o f the trial, whilst general damages relate to ail other items o f damage whether pecuniary or non-pecuniary. I f damages are special damages they must be specifically pleaded and proved as required by iaw. For a loss to be calculable at the date o f trial it must be a sum that has actually been spent or loss that has already been incurred .... Special damages and generaI damages are used in corresponding senses. Thus, in personal injury claims, 'special damages' refers to past expenses and lost earnings, whilst \general damages' will include anticipated loss as well as damages for pain and suffering and

loss o f amenities.... Special damage is in the nature o f past pecuniary iosses or expenses whiie genera1 damage is futuristic pecuniary ioss or expenses. "[Emphasis added] In this instance, the appellant submitted a plaint in which he sought special damages in the amount of TZS. 107,246,000.00. He presented a list (exhibit P10) of sixteen items allegedly lost or damaged, along with their corresponding values, to substantiate that claim. To begin with, it is evident that the claims regarding the loss or injury of the itemised properties are unsubstantiated. By any yardstick, the listing is not evidence that the alleged properties were lost or damaged. Secondly, the methodology used to determine the value of each itemised property is another point of contention. As we noted in Charles Christopher Humphrey Richard Kombe t/a Humphrey Building Materials {supra), such listings are frequently predicated on guesswork or arbitrary assumptions especially on valuation of the allegedly lost or damaged items. It is impossible to act upon it without the support of additional compelling evidence. Similarly, in Strabag International (GmbH) {supra), we rejected a list that contained speculative figures to substantiate a claim for special damages. So, we reiterate that this

appeal is no different. The appellant submitted as evidence an itemised list he drew up himself, possibly in the comfort of his offices, but no additional information was provided. This falls short of the necessary standard. Consequently, we affirm the trial court's determination that the appellant failed to establish his claim for special damages. It was argued that the High Court's award of TZS. 30,000,000.00 for general damages was significantly inadequate considering the respondents' actions, which caused enduring disruptions to the appellant's business operations. Initially, we disagree with Mr. Madibi's characterisation of the respondents' actions as the source of enduring interference with the appellant's business operations. According to the trial court, the appellant lacked a permit for the occupancy of the Msasani point and, despite possessing a permit for the Biafra installation, he operated it in violation of the business licence that was issued to him. The respondents were justified in halting his operations and reclaiming the open spaces on the road reserve on this basis. Mr. Nyoni contended that the appellant was not entitled to general damages because he conducted business unlawfully on the open spaces on the road reserve without a permit or licence. We disagree with him

on two grounds. Initially, we are aware that the respondents did not cross-appeal against the general damages that were awarded. So, the legality or propriety of that award is not a matter that we are currently considering. Secondly, the trial court's award, as we comprehend the situation, was for the injury that the appellant sustained because of the protracted expropriation of his materials and equipment, rather than for the loss of the two business locations. Although the former injury is clearly justiciable, the loss of the business locations is not, according to the evidence in the record. We are, therefore, unable to interfere with the award of general damages. The third ground of appeal stands dismissed. Lastly, the fourth ground of appeal censures the trial court for failing to assess the evidence on record. The primary argument, as presented by Mr. Madibi, is that the trial court neglected to evaluate and give due weight to exhibits P7 and P10. It was alleged that this approach not only denied the appellant a richly deserved order of specific performance based on exhibit P7, but also deprived him of a justifiable award of special damages in the amount of T7S. 107,246,000.00 as per exhibit P10. We believe that we have satisfactorily addressed the

substance of this ground in our assessment of the second and third grounds of appeal. Specifically, we have examined and evaluated exhibits P7 and P10, but we have determined that they do not advance the appellant's case. As a result, the fourth complaint also falls by the wayside. The upshot of the matter is that the appeal is without merit. We dismiss it with costs. DATED at DAR ES SALAAM this 18th day of November, 2024. G. A. M. NDIKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 19th day of November, 2024 in the presence of Ms. Joyce Shayo, learned counsel for the appellant and Mr. Stephen Kimaro, learned State Attorney for the Respondent, is hereby cert