Emanuel Mayemba and Another vs Sabi Shirima and Another (Civil Case No. 383 of 1998) [2000] TZHC 191 (26 July 2000)

(1) ( 2) IN THE HIGH COURT OF TANZANIA. AT DAR ES SAIAAM CIVIL CASE NO. 383 OF 1998 · EMANUEL MAYEMBA L . . . T 1 • o • - ... ffl o ••••••••••••••• • • •PLAIN TIFFS MICHl'>.EL MA YEMBA J versus (1) SABI SHIRD1A ~ (2) ~ •••••••••••••••••••••••••• DEFENDANI'S SHIRIMA ~ · - R U L I N G = = = = = = BUBESHI 1 ,;. in There are two preliminary points of objection rhis-ed: / this matter. These are that, the 2nd defendant has been wrongly joined and that the claim filed contravenes the law relating to l:i.ab:.lity for fatal 8.ccidents. It has been submitted oh behalf of the 2nd defendant that the 2nd defendant is alleged to be the father of the 1st defendant, and that he cllowed the 1st defendant to dr'ive his motor vehicle on the fateful dey• In_ other words, :i.s the father liable for the negligent acts of his adult son? I think not I am not awnre of any law in this country which estnblished the liability of a father ior' the negligent acts of his adult son. The 1st defendnnt, by ev:i.dence, on /reco,~~t a minor. --- ·_,. I am inclined to ngree with the submissions mo.de by Dri \tlambali and therefore -, lete the name of the 2nd defendant from this claim without further ado • . ~ The second objection is related to the requirement of the provisions of the Law Reform ( Fatnl Accidents and Miscellaneous Provisions) Ordo Cap.360. ·Section 4 thereof, provides thnt every actions brought under the provisions of this Part shall be for the benefit of the depndants of the person whose death has been causend shall be brought eithe~ by the executor or the administrator of the deceased pers n and in the name or names of ru.l the dependants of the deceased person. Dr. Wrunbali has argued that the plaint must DJ.lege facts which disclose loss or suffering of the dependants - see the co.se of Lechabai Mulidahar vs Radhakrishmlan M K.hemaney - 09617 E.Ao 547. It is the defendants submission that the plGint must disclose to what extent were the dependants receiving benefits from the deceased if he had not been killed.

.... 2 It was also submitted that in terms of section 6 of Cap 360, the plaintiff must deliver to the defendant or his advocate tog?ther with the plaint fuU po.+ticulars of the person or persons for whom and on whose behalf such action is brought and of the nature of the claim in rspect of which d'..3.ITlnge o.re sought to be recovered· - see the case of NANCE 'V BRITISM COLUMBIA ELETRICT CO LTD C).·9517 A.C. 601 or /j)517 2 All ER 448; which sets out issues to be tried in n ·case related to dnmage 8 resulting from an action on fntal accident. Dr Wnmbali has submitted that the plaint as filed, falls short of the abve guide- lines. That the ages of the dependo.nts o.re omitted, that to wht extent were the two children depended on their parents; where they were schooling and expenses involved inform of· school fees, uniforms, pocket money etc. That the deceased's life style have to be described. Dr Wnmbnli h::ts submitted thnt as the plaint now stands, it falls short of.the necessary particulars to enable them to fully defend the claim. Mr Ademba Gamba advocating for the plaintiff has not replied to the objections raised despite the fact that these were filed 1n court on 19/1/2000 - with a presumption that the plaintiff was on notice. In the premises, I run inclined to agree with Dr Wambnli that the plaint as filed does not meet the provisions relating to hability for fatal accidents. It is bad in law arid it cannot therefore stand, Accordingly, I have no ru.ternative but to strike it out~ The p1aintiff 1 s counsel are directed to ,:l.tnend the plaint in view of the observations made herein above, subject of course to the law on limitation. I order no costs. Delivered before Parties. 1 <· ) . 11 f ·: _ .~ I ✓ ··1,, I ·,/· ,, /, I. \ Ui•Lh:/ :; ... 1..,( AoGo BUBESHI JUDGE. 26/7/2000.