Bamprass Star Service Station Ltd vs Fatuma Mwale (Civil Appeal No. 27 of 1993; Civil Case No. 126 of 1993) [1999] TZHC 530 (26 August 1999)

390 TANZANIA LAW REPORTS (2000]T.L.R. E F G H BAMPRASS STAR SERVICE STATION LTD. v. MRS. FATUMAMWALE HIGH COURT OF TANZANIA ATARUSHA (Rutakangwa, J) CIVILAPPEALNo. 27 OF 1993 (Appeal from the Arusha Resident Magistrate's Court, in Civil Case No. 126 of 1993) Tort - Tortious liability of a retailer - Whether instances of such liability are limited. Tort - Negligence - Instead of supplying battery acid appellant supplied JIK and gratuitously topped up the battery with JIK - Battery damaged - Whether appellant tortuously liable.

BAMPRASS STAR SERVICE STATION LTD. v. MRS. FATUMA MWALE 391 Tort - Vicarious liability - Servants of appellant acted negligently during the A course of employment - Appellant vicarious~y liable. Tort - Damages - Special damages in tort - Special damages must be specifically pleaded and strictly proved. Damages - Special damages - Special damages must be specifically pleaded and strictly proved. The respondent, a business woman who used to hire her motor vehicle to various tour operators, drove the motor vehicle to the appellant's service station and ordered, among other things, car battery acid for topping up her battery. Instead of supplying her with battery acid the servants of the appellant supplied a liquid detergent known as JIK and gratuitously undertook to top up the battery. The topping up the battery with JIK instead of battery acid damaged the battery. Since the battery was damaged from 13 August 1993 to 13 October 1993 the motor vehicle was grounded and so the respondent could not do business using the vehicle. The appellant had made promises to replace the damaged battery but did not fulfil such promises. Because the appellant had failed to replace the battery the respondent decided to replace the battery herself. She filed a suit in the court of the Resident Magistrate alleging negligence on the part of the appellant and claimed both special and general damages. The trial court found for the respondent and awarded special damages amounting to TZS. 2 238 660 plus costs but did not award general damages because the same were not particularized and proved. Aggrieved by the decision of the trial court the appellant appealed to the High Court. The Appellate Court considered, among other things, on which branch of _ law, whether tort or contract, the cause action was based and whether damages were properly awarded. Held: (i) On the facts established in this case it was not necessary for the respondent to rely on contract in order to show cause of action because the duty allegedly breached by the appellant through its servants arose out of a liability independent of the personal obligations under any contract; (ii) Negligence as a tort is the breach of a legal duty to take care which results in damage to the plaintiff; and how wide the scope of the duty of care in negligence is to be laid by the courts depending ultimately upon the courts' assessment of the demands of society for protection from the carelessness of others; B C D E F G H I

392 TANZANIA LAW REPORTS [2000]TL.R. A (iii) The appellant had a duty of care imposed by the principle of proximity on the B C appellant company while rendering service to the respondent to supply the right type of battery acid; (iv) Although the appellant was not bound to top up respondent's battery with battery acid, since he undertook to do so he was bound to perform the service or render it diligently and with due care as not to injure the respondent by putting the right acid; (v) The respondent's claim was rightly based on the tort of negligence and the appellant company is vicariously liable in the negligent acts of its servants in the course of their employment; (vi) With regard to general damages the plaintiff need only aver that such damage o has been suffered and the quantum to be awarded is for the court to decide; E F G H I (vii) The trial court was wrong in not awarding general damages; (viii) It is trite law that special damages being "exceptional in their character" and which may consist of "off-pocket expenses and loss of earnings incurred down to the date of trial" must not only be claimed specifically but also "strictly proved"; (ix) The respondent is entitle to a total ofTZS. 278 660 as special damages. Appeal partly allowed and partly dismissed Cases referred to: (1) Jackson v. Mayfair Window Cleaning Co. Ltd. and another [1952] 1 All ER215 (2) Jarvis v. Moy, Davies, Smith, van Dervell and Co. [1936] 1 KB 405 (3) Okale v. R. [1965] EA 555 (CA) (4) The Medical Officer in charge, Mkinga Hospital v. Theodolina Alphaxed, Civil Appeal Number 49 of 1992 (unreported) (5) Donoghue v. Stevenson (1932] AC 562 (6) Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd. [1964] AC 465 (7) Skelton v. London and North Western Railway Co. (1867) LR 2 CP 631

BAMPRASS STAR SERVICE STATION LTD. v. MRS. FATUMA MWALE 393 (8) B.A. Minga v. Mwananchi Total Service Station Shinyanga and Total A (T) Ltd. [1972] HCD n. 241 (9) The Susquehanna [ 1926] AC 655 (10) Prehn v. Royal Bank of Liverpool (1870) LRS EX. 92 ( 11) British Transport Commission v. Gourley [ 1956] AC 185 (12) The C.M.C. Ltd v. Moshi/Arusha Occupational Health Services [1990] T.L.R 96 (13) British Westinghouse Co. v. Underground Railway [1912] AC 673 (14) Liesbosch Dredger v. Edison S.S. [1933] AC 499 (15) Strong Bruks Aktie Bolag v. Ahutchison [1905] AC 515 (16) The Greta Holme [1897] AC 596 (17) The Mapresa [ 1907] AC 241 (18) Macrae J. Swindels [1954] 1 W.L.R. 597; [1954] 2 All ER 260 Statutory provision referred to: (i) Law of Evidence Act, 1967 Mr. D 'Souza, for the Appellant Mr. Ojare, for the Respondent JUDGMENT (Delivered 26 August 1999) RUTAKANGWA, J.: This is an appeal from the decree passed in the judgment of the Arusha Resident Magistrate's Court in Civil Case Number 126 of 1993. In that suit the appellant, M/S Bamprass Star Service Station Ltd was the defendant while the respondent Mrs. Fatuma Mwale was the plaintiff. The plaintiff to a greater extent, carried th.e day in the trial court. The claim of the respondent was based on the tort of negligence. The trial court awarded the plaintiff special damages B C D E F G H

A B C 394 TANZANIA LAW REPORTS [2000]T.L.R. to the tune of TZS. 2 238 660 plus costs, but her claim for general damages was disallowed. The plaintiff was wholly satisfied with that decision. The defendant was not, and hence this appeal. Mr D'Souza, learned counsel for the appellant has preferred to preface his well researched written submission in this appeal with this assertion: "(T]his case looks simple but it is not". Amplifying this statement, he goes on to say: ... On analysis it raises several issues on law of evidence, burden and standard of proof, liability of a retailer of goods, liability of a retailer of goods in negligence, assessment of damages in contract and/or tort, mitigation o of damages, illegal contraction and trading, etc. In his equally illustrative written submission in reply to Mr D' Souza 's, Mr Ojare learned counsel for the respondent, appear to downplay the above pointed out complexities in the appeal. He begins his response E stating: F G ... we have at the outset to state that contrary to what is stated by learned counsel for the appellant in his written submission; the various issues presented by this appeal are straight forward, and the major problem affiicting learned counsel for the appellant is the application of the law to the facts of the case based on this appeal. All this makes some of the issues in this appeal, in my humble opinion, to be very intriguing, if not thought-provoking, though not insurmountable. I, of course understand that all this would have been strictly unnecessary but for ground number 2 of the Memorandum of Appeal. The appellant is complaining therein that: H The trial court erred in law in treating the case as one for negligence and it ought to have found that no cause of action in negligence was proved on the facts. I The respondent however is of a different view. I may as well point out at this juncture that I will have to deal with this taxing legal

BAMPRASS STAR SERVICE STATION LTD. v. MRS. FATUMA MWALF: 395 issue without the benefit of having the opinion of the trial court on it. This is because it has been raised for the first time at this appellate stage. Counsel for the appellant can be excused because he never handled the case at the trial stage. The same applies to counsel for the respondent. In order, therefore, to meet the competing demands ofboth counsel, before embarking on the facts (both admitted and at issue) I have found also be the opposite preface this judgement with the instructive, holding of Barry, J. in the case of Jackson v. Mavrair Window Cleaning Co. Ltd. and another ( l) on the distinction between liability based on tort and on contract. I find his observations therein to have a compelling bearing on the ultimate decision of this appeal. Barry, J. had this to say: ... As has often been pointed out there is a considerable ' no man 's land' A B C D of doubted ground between contract and tort and some causes of action E may properly be pleaded either as torts or as breaches of contracts. I have to look at the true substance of this action and to decide on which side of the line it falls. The test to be applied was clearly and shortly formulated by AL Smith, LJ in Turner v. Stallibrass ([1898] I QB 58) as F follows: The rule of law on the subject, as I understand it, is that, if in order to make out a cause of action it is not necessary for the plaintiff to rely on a contract, the cause of action is founded on torts; but on the other hand, if G in order successfully to maintain his action, it is necessary for him to rely upon and prove a contract, the action is one founded upon contract . . . . the test enunciated by AL Smith, LJ is, I think, one of quite general application. It was re-stated in equally clear terms by Greer, L.J. in Jarvis v. Moy, Davies, Smith, van Derve/1 and Co. (2): The distinction in the modern view, for this purpose between contract and tort may be put thus: where the breach of duty alleged arises out of a liability independently of the personal obligation undertaken by contract, H I

396 TANZANIA LAW REPORTS [2000]T.L.R A it is tort, and it may be tort even though there may happen to be a contract between the parties, if the duty in fact arises independently of that contract. Breach of contract occurs where that which if complained of is a breach of duty arising out of the obligations undertaken by the contract" at page 217. 8 On the basis of this firm legal foundation, it is now safe to look at the facts of the case and merits or otherwise of this appeal. From the undisputed evidence on record, the respondent is a business c woman engaged in transport and mining activities. She owns or by the time of the trial of the suit, she owned two motor vehicles which she used to hire out to tour operators, such as King'ori Tours, Kakakuona Tours, and Jeff Tours and Safaris Ltd. 0 One such vehicle was a Toyota Land Cruiser, with an open roof with Registration Number ARN 434. It is not in dispute also, that on 23 July 1993, the respondent bought one N 40 Exide battery for the said motor vehicle from the E Nairobi Cycle Mart Ltd. for. Kenyan KShs. 4 800 . The cash sale receipt for the same was tendered and accepted in evidence as Exhibit Pl. It is equally undisputed that prior to 13 August 1993 the respondent was not only a regular customer of the appellant company, but a F very esteemed one. The appellant company is, of course, a limited liability company engaged in the business of selling petroleum and allied products at Mianzini area of the Arusha Municipality. It is a service entity. It is managed by one Mahesh Barned. G According to the undisputed evidence of the said Mahesh, who testified as DW.3 on behalf of the appellant company, some of the products they offer for sale at their filling station is petrol, diesel, engine oil, kerosene, grease, battery water (both distilled and acid) H etc. It is also admitted that on 13 August 1993, the respondent drove her motor vehicle, Registration Number ARN 434, (hereinafter to be referred to as the vehicle, where necessary) to be fuelled with diesel. It is also not in dispute that she ordered the vehicle to be 1 fuelled with 20 litres of diesel which was done. She also requested that engine oil and battery water (acid) be added to the engine and

BAM PRASS STAR SERVICE STATION LTD. v. MRS. FATlJMA MWALE 397 battery respectively. It is also agreed by both parties that the respondent A was attended by the appellant's pump attendant one Abraham Lyimo. The said A. Lyimo who testified on the side of the defence as DW 1 told the trial court that as of 1 October 1997 (when he testified) he had been in the employment of the appellant company for six years. B So, as of 13 August 1993 he had been an employee of the appellant for two years. The respondent was issued with a cash sale receipt, which was tendered and accepted in evidence as Exhibit Pl 1. That is all as far the outright undisputed facts are concerned, for what c happened at the filling station thereafter and on subsequent days is a borne of contention. The respondent testified as PWI at the trial. She told the trial court that after DWI Lyimo had fuelled the vehicle (with 20 litres D of diesel) he proceeded to put the engine oil (I litre) into the engine and thereafter "went inside for battery acid" water. She went on to testify that then the pump attendant came out of the office with a bottle. He then released a battery cap and when he "re-filled, all of E a sudden a lot of smoke and awful smell came out of the battery". As they were inside the vehicle they (herself, the driver one Derek and Asha Eawai, now deceased) disembarked to find out what was amiss. According to her, the appellant's other workers also gathered F around the vehicle and DWI (whom she mistakenly referred to as Richard) was also alarmed. Then DWI looked at the bottle only to find out that it was labeled 'JIK'. The respondent assured the trial court that she too read the label on the bottle and saw the words "IlK?. The respondent further testified that at that juncture, DW. l returned to the office and when he came out he went to her and uttered the following words: samahani naona ajenti wetu labda amekosea. Kuna katoni ya maji ya betri na Jik. G H In short, DW. l offered an apology to her explaining that their agent had messed up things for there was a carton of battery water and 1

398 TANZANIA LAW REPORTS (2000] T.L.R. A another one of Jik. There is, of course, no dispute here that Jik is one of the common brands of liquid detergents. Immediately thereafter one Asian (who has been identified at the trial as Sagar, the brother of DW.3 who was the over-all incharge 8 at the filling station then), came out of the office poured out all the liquid contents in the vehicle's battery and re-filled it with battery acid. Thereafter her driver tried to start the vehicle, but it would not start. Then the said Sagar pleaded for forgiveness and requested C the respondent to see him the following day for the purpose of purchasing a new battery for her. They then jump-started the vehicle and drove it home (because it was a diesel-engine). According to the respondent the next day she went to see Sagar D as agreed the previous day. The said Sagar fuelled her other car (with 10 litres of petrol) and gave her one of the appellant's employees to accompany her-comb the town (of Arusha) for another battery. The respondent was in the company of one Tony Kombo (PW2). E This employee was DW2 Richard John Makungu, the supervisor at the said filling station. This DW2 bore out the respondent on this in his testimony and further added that the said Sagar did give them a cheque for the purpose of purchasing another battery for the respondent. F It is the evidence of both PW 1, PW2 and DW2 that the mission was unsuccessful. The failure was a result of the non-availability of a battery identical to the one which was allegedly damaged the previous day, that is a types N 100 (although DW2 testified that they came G across such a battery of YUASA type which the respondent rejected as she was insisting on Oxide type made in Nairobi). When they failed to get the battery she wanted, they returned to Sagar and reported accordingly. It was the plaintiff's (respondent) H case that Sagar ( whom she referred to as the 'Asian' in her evidence) "committed himself to procure the battery from Nairobi" and promised to deliver it the following day. I When the respondent called on him the next day, he begged her to excuse him as he was yet to order it. From then on she kept going

BAMPRASS STAR SERVICE STATION LTD. v. MRS. FATUMAMWALE 399 to the appellant's offices but each time she would get "empty promises". A When nothing good came out of those promises she decided to purchase it on her own for KShs 4 950. This was on 13 October 1993. Because her vehicle was grounded between 13 August 1993 and 13 October 1993 for lack of a battery, the respondent told the trial 8 court that she suffered economic injury/loss. As already indicated in this judgement, the respondent testified that she used to hire the vehicle to various tour operators. It is her claim that she "would get between TZS. 35 000 - 50 000 a day" (although in para 8 of her C plaint she averred that her daily loss of income was TZS. 35 000). The respondent called PW.3 Jennifer Zavaria to back her up on this. PW3, by 1993, was a tour operator. She was one of the Directors of the earlier mentioned Jeff Tours and Safaris Ltd., which closed 0 its business in 1994. PW3 told the trial court, and this was not challenged by any evidence, that they used to hire motor vehicles from various individuals to conduct their tour operations of ferrying tourists to the "National parks and exotic spots". One of these people was the E respondent, from whom they used to hire her Toyota Land Cruiser (the vehicle). This witness told the trial court that sometime they wanted the vehicle to ferry their guests to Lake Natroni. They, however, could not get it as the respondent told her that it had no battery. F PW3 was specific that on this single occasion they wanted to hire the vehicle for seven (7) clear days. It is again, the undisputed evidence of PW3 that the rates paid ranged between TZS. 35 000 - 40 000 per day. G On this basis the respondent was claiming the reliefs alluded to earlier in this judgement because "the defendant's servant was negligent". The appellant called four witnesses in its defence, at the trial. H The fourth witness was Burhan S. Patwa. This witness (DW4) identified himself as the General Manager of A - Z and also a businessman owning and managing a hardware shop selling also bolts and nuts as well as batteries. Professing to be neither an expert nor knowledgeable in the chemical composition of battery acid water, distilled water, 1

400 TANZANIA LAW REPORTS [2000JU.R. A or Jik, he all the same ventured to tell the trial court, out of experience, what may cause a battery to malfunction. He named such causes to be "defective alternator ( overcharging), cut out, and poor servicing of the battery such as replacement of acid and battery water". The B witness further told the trial court on examination in chief that "if something else is poured in a battery apart from acid and battery water this may lead to malfunctioning of the battery". "Over filling of these substances (acid and battery water) may damage a battery c ... " he further stated. However, within the same breath, while conceding that he was ignorant of the chemical ingredients of jik, he had the audacity to tell the trial court that j ik cannot damage a battery. It is significant to point out here, that inspite of his earlier emphatic 0 assertions, he never told the trial court that jik falls in the classification of"acid and battery water". Under cross-examination, DW4 further admitted that "if foreign things such as sand is put in a battery, may damage it". E The evidence ofDW.3 was significantly short and non committal. For him when this saga took place he was on safari and returned in September, 1993. He testified that when he was away, Sagar "took over as in-charge of operations". Upon his return, he was approached F by the respondent who went there to collect the battery". When he contacted Sagar, he was assured by him "that they had already resolved the dispute/issue" in that Sagar had already given her another battery in replacement. G By way of defence to the claim, DW3 added: He (my brother) told me that she (plaintiff) had demanded a replacement and that despite the fact that her battery was not defective he (my brother) decided to replace it and took hers and that by doing this we suffered no H loss. I DW3 was emphatic that the claim was false as he never deals injik. That my be true, but that is the bane of the parties to this appeal. DWI and DW2 are the most crucial witnesses on the incident which led to these proceedings. As already shown, both are full time

BAMPRASS STAR SERVICE STATION LTD. v. MRS. FATUMAMWALE 401 employees of the appellant company and it is an admitted fact that A they were on duty at the appellant's filling station on the material day. There is no dispute on who attended the respondent on that day when she pulled up there to have the vehicle refueled. What is in dispute and indeed the bottom line of the entire claim is what he did or failed to do to the respondent. DW. l does not dispute fuelling the vehicle with 20 litres of diesel. He does not believe the respondent B on her claim that she also ordered one litre of oil and one litre of C "battery acid". This is what he says in his evidence in chief: ... I know the plaintiff, the person seated in this courtroom. She is our customer. I recall that on 23 August 1993 (sic) she came to the station and collected 20 litres of diesel, l litre of oil, and battery acid (baridi) l litre. I issued her with a receipt. The following day she came with a complaint 'kwamba maji hayakuwa mazuri kwenye betri yake'. That once put in the battery the motor vehicle did not start. I communicated the complaint to one Richard my immediate boss. The employer was at the material time on safari. Richard communicated the complaint to one Sagar. The owner's brother. I did not know what transpired. That was all he said under examination in chief, (although it is clear that the actual date was 13 August 1993). As it will be immediately realized this witness, either by design or inadvertently was evasive. By using the word 'collected' it can be interpreted that he did not put the diesel in the fuel tank himself. The same applies to the engine oil and acid water. However under cross-examination, things became clearer. He admitted that the respondent was a "very good customer" of theirs and "would fuel almost every day". He further bore out the respondent that she used the vehicle for tour operations. Although he categorically stated that he never poured the acid water into the battery but gave the bottle and its contents to the respondent who left with it, he was equally unequivocal. In his evidence that he knew of no reason why D E F G H I

402 TANZANIA LAW REPORTS [2000]Tl.R A the respondent would tell a lie against him or course DWI was not open on whether or not he poured the engine oil into the engine. My task in this appeal, would therefore, have been too onerous in deciding as to who between him and the respondent was telling the B truth, had it not been for his subsequent unsolicited admission of wrong-doing (not in a criminal sense) and the evidence of DW2. Whether DWI 's 'conversion' was a result of being conscience - striken or an act of providence is of no moment here. The plain fact c is that he totally destroyed his credibility and the appellant's defence and lent impeachable credence to the respondent's claim. D To be fair to him and the appellant I will reproduce this discrediting ( on his part) piece of evidence in full. He said: I learnt of these proceedings yesterday when I was asked to come and testify. I do not know that PW. I was ready to forgive me. I paid a visit to her E residence yesterday in the morning. This was after the defendant told me the nature of the claim. So I went to ask her to forgive me. She told me it was too late. I went to her because the defendant told me I was the cause. One F would ask for pardon if he/she has made a mistaken/ committed, a wrong. I even offered to replace her battery. I told her I could sell my belongings to replace the battery. This evidence tells its own tale, although he immediately told G the trial court (may be, in order to blur its impact, on reflection) that he never sold the respondent the "wrong acid". The temptation to argue that DWI might have gone to plead with the respondent under duress from his employer, is totally ruled out by his further H admission that it was not the defendant who sent him to ask for mercy. I have already shown above that the evidence ofDW2 Richard also made the job of evaluating the credibility of the witnesses easier. I will elaborate. I have touched on the evidence ofDW2 on how he I was given a cheque by Sagar to accompany the respondent to look for another battery.

BAMPRASS STAR SERVI CE STATION LTD. v. MRS. FATUMA MWALE 403 DW2 further told the trial court that when they returned to Sagar, A the latter gave the respondent their own battery and they took her own battery (the damaged one). This evidence clearly shows that, at least for some time, the appellant had physical possession of the respondent's battery, after 13 August 1993. The evidence of both B DW2 and DW3 is remarkably silent on when the same was returned on her if at all. But I am still on what happened at the filling station on 13 August 1993. Reading the evidence in chief of DW2 one would emerge with C an unmistaken impression, if not fully convinced, that he never saw the respondent on 13 August 1993 at all. However, the apparent ingenuity of counsel for plaintiff (Mr Maro) led to what I would conveniently call for this purpose only, the discovery of"the skeleton in the cupboard" D of the appellant. Contrary to the allegation of DWI and DW3, this witness specifically told the trial court that both DW2 and Sagar "were around on the material date". All the same this to me is very trivial compared to his further testimony under cross-examination. E While being further cross-examined by Mr Maro, DW2 told the trial court categorically that he not only never saw DWI serving the respondent but that he was not around. Then Mr Maro confronted DW2 with Exhibit Pl I (the cash sale receipt for the fuel, oil and F acid water). Apparently it has his name written thereon overleaf. At first he demurred claiming that he never saw the name when the respondent took it to them on 14 August 1993. He however immediately belied himself when he said: G .. .It is true that when the acid was placed in the battery and there were signs that the same might not have been the right acid, my name was written behind page 11 as the person who was going to handle the complaint. This piece of evidence of DW2 is very significant for two very good reasons. In the first place regardless of whether or not what was put in the vehicle's battery was jik or battery acid it established beyond any doubt that the same was done at the appellant's filling station H I

404 TANZANIA LAW REPORTS [2000] T.L.R. A and for that matter I now take it as settled that it was done by DWI in the course of his lawful employment with the appellant. Secondly, it goes to establish, on a balance of probabilities, that something abnormal was occasioned to the respondent's battery on the vehicle B as a result of that liquid put into it by DW 1. This belief is strengthened by the evidence of DWl to the effect that he was cause of the whole problem. In the light of this clear evidence, the learned trial Resident Magistrate had no other rational option open to him, apart from accepting c the evidence of the respondent on the issue unreservedly as true. Having objectively and dispassionately canvassed all the evidence on record on the issue I concur with him. It is also my finding of fact that the respondent gave a correct o and true version on what transpired at the appellant's filling station on 13 August 1993 when she went there to fuel the vehicle and add engine oil and battery acid (water). I also find it as an established fact that the respondent vehicle's battery which otherwise was functioning E properly when she pulled at the appellant's filling station to refuel, among other services she needed there, was damaged totally, wheri some foreign substance was put into it by DW 1. F G At the commencement of trial, the following issues were framed: (I) Whether the substance sold by the defendant to the plaintiff is ajik as alleged. (2) Whether it is that substance that caused the battery to seize. (3) Whether the plaintiff suffered damages. ( 4) To what reliefs are parties entitled. These issues were based, as usual, on the pleadings. The issue on H whether or not the respondent had a cause of action in tort was not framed as that was not an issue at all before the trial court. The defendant never challenged the claim against them for non disclosure of a cause of action under the law of tort for negligence which was I specifically pleaded. So the trial court never ruled on the issue although it has been made an issue here. All the same, the learned trial Resident

BAMPRASS STAR SERVICE STATION LTD. v. MRS. FATUMA MWALE 405 Magistrate was satisfied, on the material before him that the plaintiff A (respondent) had sufficiently proved her case to the required standard and answered the first three issues affirmatively. He then proceeded to award the respondent all the reliefs she was seeking save general damages. The defendant was aggrieved by the decision and hence B this appeal. The soundness in law and on the facts of the trial court's decision has been roundly attacked in this appeal. As such the three - page Memorandum of Appeal filed by Mr D'Souza contains l O main grounds of appeal. It is expedient that I commence with the fifth ground of appeal. Standing alone (that is, without its accompanying elaborations) the fifth ground reads as follows: The trial court erred in law in that it did not take into account material factors in its evaluation of the plaintiff's case. C D Elaborating on this, both in the Memorandum of Appeal and in his E written submission, Mr D'Souza has strenuously argued that had the learned trial Resident Magistrate not dealt with the evidence "in a rather superficial manner", he would have realized that "what took the plaintiff to the petrol station was initial malfunctioning of the F car battery". Mr D'Souza based this contention on the failure of the plaintiff to tell the court "what made her decide to top up the battery with battery acid". In answering this ground of complaint I will first make one point clear. This is that except for those facts or matters which the courts are permitted by the Law of Evidence Act, 1967, to take judicial notice of all issues of fact in a case must be decided on the basis of the legally admissible evidence as tendered by the parties in the course of the trial. Indeed Mr D'Souza, while submitting on ground number 4 of his appeal, quite aptly referred me to the case of Oka le v. R (3), wherein it was held that "the court's decision must be based on the evidence heard and not upon any theory put up by the court". Of course such theories can even and are often, raised by the parties G H I

406 TANZANIA LAW REPORTS [2000]TLR. A to the case or their counsel. I have therefore, scanned the entire evidence on record, (including that of DW4) but I was unable to come across even an iota of a suggestion to bear out Mr D'Souza on this theory which the appellant is raising for the first time in this B appeal. The condition of the battery right up to the moment when the plaintiff drove the vehicle to the appellant's filling station on 13 August 1993 was not an issue at all. That notwithstanding it was not C even put to the respondent during cross-examination that the battery was not functioning either at all or properly when she called at the appellant's filling station for re-fuelling. As if that is not frustrating enough for Mr D'Souza's theory, the evidence of the appellant company's D own witnesses, militate against the same. The evidence of both DW2 and DW3 is to the effect that the said battery was functioning properly. The appellant is bound by its evidence, and it cannot be allowed to blow hot and cold at the same E time. I accordingly hold that the trial court was perfectly correct in not finding that the respondent's battery was malfunctioning when she went at the appellant's filling station to be supplied with diesel, oil and battery acid. This conclusion then leads to me another aspect F of Mr D'Souza's complaints contained in ground of appeal number 5. The appellant is condemning the learned trial Resident Magistrate for failing to hold that the plaintiff/respondent who is obviously an intelligent woman would not take possession of the alleged bottle G marked "Jik' immediately after the alleged incident". The complaint has been well answered by Mr Ojare. In his submission Mr Ojare has, in my considered opinion, correctly pointed out that the conduct (by word and deeds) of the appellant's servants immediately after H the incident did not warrant to immediately take possession of the bottle containing the contentious substance. There was, going by the evidence of the respondent, the instant admission by DWl that the liquid poured into the battery was JIK followed by an immediate I apology. This piece of evidence was not seriously challenged on

BAMPRASS STAR SERVICE STATION LTD. v. MRS. FATUMA MWALE 407 cross-examination, nor was it in anyway disputed by DW 1 in his A evidence. Instead we have the evidence of OW 1 that he went to see the respondent, a day before he testified, to once more ask for forgiveness. There is the undisputed evidence that DW3 's brother who was the in-charge on that day, immediately offered to replace the damaged battery with a new one I understand that the Defence witnesses said this was on the following day. But for the reasons I have already given, like the trial magistrate, I also hold that this was on 13 August 1993. The respondent was clear on why she could not take possession of the Jik bottle. She said: ... I trusted them because first of all we are neighbours and I was their regular customer and besides he was apologetic. By and large, this has been confirmed by DWl and DW2. 8 C D The complaint that the respondent would not have "forfeited over TZS. 2 million worth of business over some 59 days by casually E leaving the vehicle standing instead of just replacing the battery costing some 33 000 with her money and claiming refund from the defendant" has its answer. In her evidence, which has not been challenged by the appellant, the respondent unequivocally stated thus: F I decided to buy the battery because he had began to be indifferent each time I went to him. I asked him to give me the money so that I could buy the battery but he insisted on buying it himself. The underlined piece of evidence above clearly absolves the respondent of any charge of "casually leaving the vehicle standing" for some 59 days. Had the appellant company been forthright and firm in its desire and decision to replace the battery, this sort of "merry-go- round" and waste of resources could have been minimized or totally avoided. The evidence of the respondent to the effect that her battery was damaged as soon as DWl poured the contentious liquid into the battery is categorical. Apart from telling the trial court that once G H I

408 TANZANIA LAW REPORTS (2000) TL.R . A DW l poured the substance into the battery, it emitted smoke and foul smell, she went to testi fy. B C When we went closer, the contents were boiling .. . we all saw the bottle; it was a bottle of jik. The 'boiling' aspect of the contents of the battery was not challenged at all. Of course the apologies of DWI and his admission that jik had been poured in are strengthening factors. But the evidence of DW2 to the effect: [I]t is true that when the acid was placed in the battery and there were signs that the same might not have been the right acid, my name was written behind Pl 1 as the person who was going to handle the complaint. D Bolsters the respondent 's claim that the battery was damaged at the appellant's filling station following the act ofDWl adding the contentious fluid in it. IfDW2 was going to handle the respondent's complaint, it means that she had been wronged in one way or another. Needing E less emphasis now are the subsequent attempts by DWI to have the respondent forgive him and even shoulder the entire burden, because his employer had told him in no uncertain terms that he was "the cause" of the problem . In the light of all this evidence, it cannot be F argued now that the offer by the appellant to buy the respondent another battery was not an admission ofliability but a mere attempt to keep a customer. If that was the case then why did it not do so for as the evidence of DWI shows she is no longer their customer. To G me, like the trial magistrate, all these frantic efforts by the appellant company, of offering to buy a new battery, of fuelling the respondents car on 19 August 1993 and releasing DW2 to her on that day to comb the entire town for another battery is not compatible with any H other reasonable hypothesis or explanation, other than attempts to placate the respondent in the wrong done to her by its servant. The contents of Exhibit P3 (the notice of intention to sue) have aroused a debate in this appeal. The most controversial are the contents 1 of paragraphs (c) and (d) of the same. In those paragraphs it is shown that counsel for the respondent was drawing the appellant's attention

BAMPRASS STAR SERVICE STATION LTD. v. MRS. FATUMAMWALE 409 to its earlier undertaking to supply a new battery if she handed over A the damaged one as well as that the respondent had "on numerous occasions" gone to them with the destroyed battery but they had "stalled and procrastinated". For certain, reading these paragraphs in isolation one would be tempted to believe that the damaged battery B had all along been in the exclusive possession of the respondent. The same would appear to contradict the respondent's evidence to the effect that the battery could not be examined by an expert because it was in the possession of the appellant. But for the evidence of c DW2 and DW3, I would have so believed. However, the evidence of DW2 and DW3 confirm that of the respondent on the issue to a great extent and leave me entertaining not the slightest doubt that as from 14 August 1993, the said battery was in the possession of 0 the appellant. The evidence ofDW2 and DW3 does not show when it was returned to her. Indeed according to DW3 the exchange was a fair deal to them. The doubts which otherwise would have been cast on the evidence of the respondent on the issue, were conveniently erased by the appellant's witnesses. Again learned counsel for the appellant took issue with the wording E of paragraph (c) of the Exhibit P3 wherein the words "and our clients informed you of this fact". It is the submission of Mr D'Souza that F the "informing" should be construed as being consistent with the fact that the respondent "went there the next morning" for there was nothing "to inform the defendant if the incident really took place at the petrol station ... "This is indeed a very attractive and persuasive G argument. But in this case I will not yield to persuasion but to compulsion. The evidence ofDW2 and DW3 compels me to differ with Mr D 'Souza on the issue. The undisputed evidence on record shows that DW3 who is the proprietor of the appellant company was on safari on 13 August 1993. DW3 testified that he was informed of the incident by the respondent after his return sometime in September, 1993. Exhibit P3 was addressed to him as the proprietor (Manager) of the business. Even without DW3 and DWI, the evidence ofDW2 is sufficient. In his evidence, H I

410 TANZANlALAW REPORTS (2000] T.L.R. A as reproduced above, DW2 shows that the incident took place at the filling station and nowhere beyond its precincts. In the light of the above I am satisfied that even if the trial Resident Magistrate had examined the evidence of the respondent with a microscope 8 he would, all the same, have arrived at the same conclusion. Her evidence was therefore, rightly accepted as true on the whole, as I shall futher shortly show. C D E F The above conclusion, of necessity, leads me to ground of appeal number four. The trial court is being castigated therein for basing its finding on what caused the alleged damage to the battery on speculations rather than expert evidence. When looked at subjectively this argument appears to be convincing for, indeed, no expert evidence on the issue in the real sense was available to the trial court. Had we to rely on the evidence of the respondent alone I would have found this argument insurmountable. However, there is evidence coming from the appellant's side absolving the learned trial Resident Magistrate. I have already dealt at great length with the respondent's evidence on the entire incident of 13 August 1993. Having accepted that evidence as true, like the trial court, I find it as a fact that what DWI actually put into the battery was not battery acid water which was ordered by the respondent but a detergent liquid known as Jik. It is of little or no significance in this case that the respondent never led any evidence to show the "chemical composition" of the said detergent. According to her, once the liquid was poured into the battery the contents inside G began to 'boil' exuding bad smell and smoke. Immediately thereafter the battery which until then was working smoothly became defective, such that even pushing the vehicle could not make it charge. Then according to her, Sagar volunteered forthwith to buy her another H battery on realizing that her battery had been damaged at their hands. In the circumstances she discharged her legal burden proof to the required standards. If the appellant well knowing that its servants in the course of their duties put a liquid detergent instead of acid water I into the battery, though and/or believed that such substance could not damage a battery, then the burden was on it to show that. It failed

BAMPRASS STAR S ERVI CE STATION LTD. v. MRS. FA T U MA MWALE 41 l to discharge that burden. Instead it called DW2 who glossed over A the fact but all the same admitted that what was put in the respondent's battery was not the "right acid'',judging by the "signs", as he put it. The only reasonable inference to be drawn here is that the " signs" referred to by DW2 are those mentioned by the respondent in her B evidence. As if that piece of evidence of DW2 was not damaging enough, the appellant went on to call OW 4 who testified that among the many things which can damage a vehicle's battery, is "poor servicing" of C the same. Adding liquid detergent or to go by the evidence of DW2 using the wrong type ofbattery acid is such type of"poor servicing". DW4 D went futher and explicitly told the court that "if something else is poured in a battery apart from acid and battery water,this may lead to malfunctioning of the battery". With all this evidence before it the trial court did not need to have recourse to expert testimony to resolve issues number l and 2 positively. I have therefore found no E immediate relevance to this case of decision of the CAT in The Medical Officer-in-charge, Mkinga Hospital v. Theodolina Alphaxed ( 4 ), cited to me by Mr D' Souza. Having found it as a fact that it was the Jik liquid detergent which DW. l put into the respondent's battery rendering it defective, I am now in a better position to tackle grounds of appeal l and 2. In the light of these facts, I now ask myself, was the respondent's claim rightly founded on the tort of negligence or was it supposed to be based on contract? This is the gist of the appellant's complaints in the two grounds of appeal. I have to revert to where I started. As already shown, "there is a considerable 'no man's land' of doubted ground between contract and tort and some causes of action may properly be pleaded either as tort or as breach of contract". Mr D'Souza has rightly submitted that the appellant company is not a manufacturer. He says it, is a retailer. On that basis h~ has F G H I

41 2 T Ai"IZANlA LAW REPO RTS [ 200 0]T. L.R. A placed much reliance on what is stated at pages 403 - 6 of the book of Charlesworth on Negligence, (5 ed) on the duty of a retailer/ wholesaler of goods in contract and tort. The learned author enumerates five instances of tortuous liability of a retailer for injuries/damages B suffered by a buyer and none of those appears to square with the facts of the case at hand. But, to me this is hardly surprising for as was stated by Lord Macmillan in Donoghue v. Stevenson (5) at page 619, "the categories of negligence are never closed". What we always c have to bear in mind, as rightly submitted Mr Ojare, is that negligence as a tort is the breach of a legal duty to take care which results in damage, undesired, of course, by the defendant, to the plaintiff. "How wide the sphere of the duty of care in negligence is to be laid by the 0 courts", so emphatically stated Lord Pearce, "depends ultimately upon the courts' assessment of the demands of society for protection from the carelessness of others" in Hedley Byrne and Co. Ltd v. Heller and Partners Ltd. (6), at page 636. E It is trite law that both in contract and in tort a claim is only maintainable in law if there is a breach of duty owed by the defendant to the plaintiff. Under contract the duty arises under the obligations of the contract between the parties, while in torts it is imposed by F law. The duty imposed by law arises from the now legendary principle ofprQximity, first enunciated by Lord Atkin in his famous question: G "Who is my neighbour?" in Donoghue v. Stevenson. Simply put this principle, as expounded and expanded to cater for the demands of society to be protected from the "carelessness of others", provides: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, per Lord Devlin in Hedley Byrne v. Heller & Partners Ltd. (6), at page 524. H The crucial question which arises now is this : was it necessary on the facts established here, for the respondent to rely on a contract (be it of sale of goods as contended by Mr D'Souza or otherwise) in order to show cause of action in relation to this incident? My 1 considered answer to this question is in the negative. This is primarily because the duty allegedly breached by the appellant through its servants

BAMPRASS STAR SERVICE STATION LTD. v. MRS. FATUMA MWALE 413 arose out of a liability independently of the personal obligations under any contract. It was a duty of care imposed by the principle of proximity on the appellant company while rendering service to the respondent. The appellant had a duty of care to fuel the vehicle with the right type of fuel, ( that is diesel instead of gasoline for instance), oil and battery acid. In the case at hand the appellant not only purported to sell battery acid to the respondent, but went further and gratuitously filled the battery with the said acid which happened to be not the right acid (per DW2) and/or no battery acid at all, but a liquid detergent known as JIK (per PWl). There is no dispute here that the appellant in selling fuel, oil, battery acid, etc. is performing or rendering a service. When DWI was filing the respondent's battery with battery acid, even though as I believe, he was not bound to do so, he was rendering this service to the respondent in the course of his employment. He was bound to perform it or render it diligently and with due care as not to injure the respondent (in person or her property) by putting the right acid. I think it was stated very lucidly by Lord Devlin in Hedley Byrnes case as follows: A promise given without consideration to perform a service cannot be enforced as a contract by the promise; but if the service is in fact performed and done negligently, the promises can recover in an action in tort, at page 526. The learned law Lord went further to cite with approval, what Willes, J. had said in Skelton v. London and North Western Railway Co. (7). Willes, J. held: Actionable negligence must consist in the breach of some duty . . . if a person undertakes to perform a voluntary act, he is liable if he performs it improperly, but not ifhe neglects to perform it, at page 636. A B C D E F G H It was also held in Jackson v. Mayfair (opagecit.) that any person who handles or interferes with the property of another owes him a duty not to I

414 TA NZANlA LAW REPORTS (2 000 ] T.L.R. A damage the property by his negligence and may be sued in tort irrespective of whether he is also under a contractual I iability. B C D The case at hand is nearly on all fours with the case of B.A. Minga v. Mwananchi Total Servi ce Station Shinyanga and Total (T) Ltd, (8). In that case, the plaintiff owned a house. One of the occupants of the house purchased one gallon of what was believed to be pure kerosene from the pump at the petrol station owned by the first defendant. The kerosene was supplied by the second defendant. When later in the evening the kerosene was put in a lamp which was still alight but dim there was an explosion followed by a fire which almost completely destroyed the plaintiff's building. It was subsequently discovered that the kerosene had been adulterated with petrol. The defendants were found liable by this court in negligence on the basis of the principle of proximity. In the light of the above, I find that the respondent's claim was rightly based on the tort of negligence and I accordingly dismiss E grounds of appeal number (1) and (2). Given what I have held in relation to grounds (1) and (2), I find no merit in ground number (3) for the suit being properly based on tort, the appellant company is vicariously liable in the negligent acts F of its servants in the course of their employment. Grounds of appeal 6 to l O relate to the issue of damages. I will begin by stating the law on the issue, albeit, briefly. As earlier shown, G the respondent had claimed both special and general damages and she won only on special damages. In dismissing her claim in general damages, the learned trial Resident Magistrate said: No general damages will be assessed because the same was not particularized H and specifically proved. On this he was wrong. Why? The law on the issue is now well settled. It is only special damage 1 which must be specifically pleaded and strictly proved. If they are proved they must, as ofright be awarded. As far as general damages

BAMPRASS STAR SERVICE STATION LTD. v. MRS. FA TUMA MWALE 415 are concerned the plaintiff only need to aver that such damage has A been suffered and the quantum to be awarded is for the court to decide: see generally, The Susquehanna (9). And it was thus graphically put by Martin, B. in Prehn v. Royal Bank of Liverpool, (l 0): General damages ... are such as the jury may give when the judge 8 cannot point out any measure by which they are to be assessed, except the opinion and judgement of a reasonable man ... Special damages are given in respect of any consequences reasonably and probably arising from the breach complained of... C While special damages may consist of "out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation", general damage is implied by law and may include "compensation for pain and suffering and 0 the like" -vide British Transport Commission v. Gourley (11). These principle was upheld by the Court of Appeal of Tanzania in the case of The CMC Ltd v. Moshi/Arusha Occupational Health Services (12). But as I said earlier, the respondent never cross appealed. I E will rest the matter here. It is the complaint of the appellant that the trial court erred in law in not holding that the Plaintiff had a duty in law to mitigate damages. Counsel for the appellant has relied on the leading case of British Westinghouse Co. v. Underground Railway (13) at 689. As a principle of law, I am in full in agreement with Mr D'Souza. However, when applied to the established facts in this case, it does not advance the case of his client any further. As rightly pointed out by Mr Ojare, it was the appellant's conduct of undertaking to procure a substitute identical battery from Nairobi personally and its unfulfilled promises which prevented the respondent from purchasing another battery in time. When it became clear that the appellant was not going to honour its promise, the respondent purchased it on 13 October 1993 and filed the suit in December 1993. I accordingly dismissed ground 6 of appeal. F G H

416 TANZANlALAWREPORTS [2000) T.L.R. A Did the trial court err in not limiting the damages to the replacement cost of the battery on the date of the alleged damage? My answer to this question, which forms the basis of ground 7 of appeal, is in the negative. The respondent had to recover both general and special B damages for the inconveniences, loss of earnings (actual and ascertainable) and physical and mental pains she might have suffered etc. The case of Liesbosch Dredger v. Edison S.S. (l 4) cited by Mr Ojare is germane here. Of course the replacement cost of the damaged battery falls c in the category of special damages. It is contended in ground 8 of appeal that the trial court erred in assuming that the vehicle was being used commercially in the absence of any business licence, TLA licence, hire receipts etc. Again the D question of user of the vehicle was not an issue at the trial. Whether or not it was a "taxi bubu" as Mr D'Souza is now contending, is a matter which is within the province of the tax man and the relevant licensing authorities. E For our part we shall content ourselves with the unchallenged evidence of the respondent that she used to hire it out to various tour operators. On this she was born out by PW3 whose evidence stands unchallenged. Indeed as pointed out by counsel for the respondent F the appellant, instead of coming up with evidence contesting this allegation of fact, brought evidence, through DWI, to support her unreservedly. The trial court cannot, therefore, be faulted in holding as it did. G H I I think it is more convenient and even logical to deal with ground number 10 of appeal and reserve the decision on the ninth ground (the last one) later. The tenth ground is couched as follows: The trial court erred in law in not holding that in fact no special damage was proved save perhaps for one trip of seven days to PW3. Having gone through the evidence of PWl and PW3 with an objective mind, I am satisfied that this ground of objection to the trial court's decision is very formidable. It is trite law now that special damages, being "exceptional in their character" must not only be claimed specially,

BAMPRASS STAR SERVICE STATION LTD. v. MRS. FATUMA MWALE 417 but also "strictly proved": see Strong Bruks Aktie Bolag v. Ahutchison A (15), cited by Mr D'Souza, amongst a host others. It is the contention of Mr D'Souza that in this case the loss emanating from lack of use of the vehicle although pleaded by the respondent was not wholly strictly proved. Mr D'Souza is further contending 8 that the respondent "did not give any evidence on loss of trips except for one seven day trip to PW3 Jennifer Zavara". Even for this trip Mr D'Souza is urging this court to deduct such sums due to failure of the respondent to take steps to mitigate damages, expenses wear c and tear, etc. I have already made my ruling on the issue of mitigation of damages. Mr Ojare has sought to counter the forcefull arguments of Mr D'Souza by relying on Gourley 's case (op. cit ... ) ... In that case it 0 was also held (Lord Goddard) that "actual loss of earnings which has already accrued at the trial is classed as 'special damage' and will normally be calculated simply by reference to the period of disability and pre-accident rate of earning". I have no quarrel with E this statement of the law. It is still valid today as it was forty years ago. And for that reason I will apply it to Jennifer's 7 - day trip which never materialized (for the respondent) for lack of a battery. But that is not the mainstay of Mr D'Souza's attack for the award of F the entire TZS. 2 238 660 specifically claimed as special damage. This claim covers an extended period of about 59 days as if the vehicle was being used in tour operation on a full time basis prior to 13 August 1993 and would have been so used thereafter which was not G the case. The evidence ofboch PWl and PW3 is very clear on this. PWl (respondent) told the trial court in unambiguous words that she used to hire the vehicle to various tour operators and that on such occasions she would get between" TZS. 35 000 - 50 000 a H day". This shows that, it was a part time or chance business. Special damages cover actual loss of earnings, not imagined ones. Mr Ojare has relied on three English cases to prop up his submission in support of the award. These are The Greta Holme (16); The Marpesa (17) 1 and Macrae J. Swindels (18) or (18). All these cases do not help

41 8 TANZANIA LA W RE PORTS [2000]T. L.R . A him at all. The Greta Holme and The Marpesa are only relevant to the issue of general damages , which his client was entitled to but was denied and they never appealed. The case of Macrae could have been fittingly relevant had the respondent hired another vehicle which B she did not. I accordingly concur with Mr D' Souza that the respondent managed to prove economic loss in respect of the 7 - day trip to Lake Natron. She is therefore entitled to recover special damages for this loss. C The issue is to how much she is entitled? I can glean not from the proceedings but from the judgement of the trial court that the figure TZS. 2 238 660 was arrived at by multiplying TZS. 35 000 times the total number of days between 13 August 1993 0 and 13 October 1993 plus the actual replacement cost of the battery which was put at TZS. 33 660 . So the trial court settled for the lowest rate of TZS. 35 000 per day. It was perfectly entitled to do that in the circumstances, and I will use that rate. Using the rate of E TZS. 35 000 as a base, I would assess specific loss of earnings by the respondent for the 7 - day trip to Lake Natron to be TZS. 245 000. The replacement cost of the battery will be the actual purchase price of the battery which is KShs 4,950 which was found by the F trial court to be TZS. 33 660. It goes without saying, therefore, that the respondent is entitled, barring any lawful deductions, to a total of TZS. 278 660 as special damages . It has been argued in this appeal that the claim of loss ofTZS. G 35 000 should have taken into account wear and tear, driver 's expenses taxes etc. (ninth ground of appeal). For that matter Mr D'Souza has urged this court to deduct at least 50% from the per diem loss. I am totally at a loss on how Mr D'Souza arrived at this percentage. The H evidence on record is silent on the issue. This is because this was not an issue at all at the trial stage. This not being an issue of law but of fact, needed clear evidence to support it otherwise we shall be leading ourselves into the very trap which Mr D' Souza has already 1 cautioned us to be wary of: not to judge issues of fact on the basis

LUTTER SYMPHORIAN NELSON v. ATTORNEY GENERALAND IBRAHIM SAID MSABAHA 419 of speculations and feigned theories, but only on the basis of evidence A prope rly adduced in court. The appellant did not lead any evidence (nor challenge the respondent's evidence) on this particular issue. It is too late in the day to raise it now. Of course it is not within the province of this court to assess 8 the income tax due from the respondent in this particular business transaction; atleast not in proceedings ofthis nature. I would accordingly dismiss the ninth ground of appeal. C D E F G H All in all then, this appeal is ultimately partly allowed and partly dismissed, as the respondent's claim was partly successful at the trial stage. For this reason I will order that each party bear its/her own costs in this appeal. Delivered in court in the presence of Mr D'Souza, counsel for the appellant and Mr Ojare, counsel for the respondent this 26 August 1999 at Arusha.