Institute of Finance Management vs Mohamed Salehe Rashid (Civil Appeal No. 46 of 1997) [1999] TZHC 131 (18 November 1999)

IN THE HIGH COURT OF TANZANIA . . DAR· ES SALAAM DISTRICT REGISTRY . AT DAR.ES SALAAM CIVIL -APPEAL CASE N0.46 OF 1997 THE INSTITUTE OF FINANCE MANAGEMENT •••.••...•........ APPELLANT VERSUS MOHAMED 3J\LEHE R.t,SHID • • • • • • RESPONDENT J_U_D G M]....N.J: BUBEStfI, J. The respondent, original plaintiff filed a claim against the appellant wherein he claimed, inter alia, compensation in damages for fals~ imprisonment, damages for defamation and costs for food wasted on 30/8/95 amounting to TShs.150,000/=. As the appellant, then defendant fail·ed to file their written statement of defen_ce, the counsel for the· respondent prayed for and was granted leave to proceed exparte. The court record shows that a chamber application praying for exparte proof by oral evidence and affidavit was filed. Immediately thereafter counsel fer the plaintiff filed written-submission on behalf of the plaintiff, iLn other.words, the court did not summon the respondent, then plairitiff to give evidence. In his short judgment delivered on 20/11/95, the trial magistrate based his findings on the submission filed by the plaintiff's couns,:?1- alone. This I think was a serious error on the pa.rt of the trial magistrate. In cases of defamation, the claim by the plaintiff has to be proved on the basis of evidence tendered.- It has to be 0bserved tha.t the respondents claim included "'." compensation for the cost of food wasted - TShs,150,000/= one mill ion shj.11 ings for false i-rnprisonment seven million as damages fer slander and costs.

2 In that event, the trial magistrate was duly bound to analyse each claim as:.per evidence·tC?nd2red, to see whether the plaintiffs/now rcspcndent, claims have been proved or otherwise. This the trial court did not do. How·then could he enter judgment for the respondent without clear analysis cf the individual claims? In the premises I have no reason to depart from the subrni'ssicn made by Dr. Nguluma for the appellant and allow this appeal. I do so because,.the judgment of the trial magistrate was not based on any evidence. While I· allow this appeal, this court orders that · the case be rerni tted to the trial CDurt to proceed w_i th the · taking of oral evidence by the plai11tiff, respondent, ·/, then as ordered on 25/10/95. Since the· appllant had

forfeited his right to appeal in court, the matter to proceed exparte by oral evidence. It is further ordered that the exparte hearing o proceed before another competent magistrate, apart from . , MIRW.BE RM. I make no order as to costs. Delivered before Mwengela for Rspcndent and ur. Nguluma for Appellant •. A.G. BUBESHI JUDGE 18/11/99 Certified true copy of the Original.

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, ,";\ ',) 3 such refusal. Hence the tort of false imprionment had been committed by the appellant on the person of the respondent, sc clc:iimed the latter. In my considered •view, this is a case when evidence had to be led to establish the complaint. Why couldnt the trial magis,trate proceed exparte by oral evidence? In any event the appel-1,::mt had decided to withdraw the complaint and forgiven the respondent. Surely with all this happening wculd the claim of TShs.9 million still st3nd? I think not. Further,general damages are discretionary on the, part of the trial court. What was the basis of awarding it without acrutiny by the same? It was errenous o the part of the trial court to award it as if it had been proved •. I am satisfied that the trial court had failed to exercise its discretion judiciously. I therefore find this to be is a case which -i.'".::- require the intervention by this court. In the premises, I allow the appeal without considering the other grounds, the exparte judgrr,ent and subsequent orders of attachment and sale of appellants property are also set aside forthwith. I make no order as to costs. Delivered b0fore Mr. Nyovela for the Appellant, and in absence of the Respondent. j f