Godfrey Shao and Another vs S/SGT. Fordia Mwakyusa (DC Civil Appeal No. 22 of 1998) [1999] TZHC 454 (7 May 1999)

,, IN T.HE HIGH COURT OF _TANZANIA (DC) CIVIL APPEAL N0.22 OF 1998 (From the de?ision of the 1•s Court of Mbeya in Rl\lh Civil Case No:26 of 1995) t GODFREY SHAO . 2. SEKENKE MWAKY01.VI.A · l- ... _., _l ••••• • •• .APPELLANTS VERSUS S/SGT. FORDIA MWAKYUS.A ••••.••••••••••• PiESPONDENT !LJL.Ji_I N G MWIPOPO, J. This is review re quested by the 2 judg:nnent debtors . . Godfrey Shao and Sekenke Mwakyoma through their advocate the ~ -- learned lV.u'~ Mbise • The learned Mr. Mbise has advanced a new fact not knwn before through the learned Mr. Kayange's affidavit in support of the applicatio that the judgement debt of shs. . . 50QOcioo/~ by admission entered by the District Court as upheld by this court was bassed on the understanding that the Nationa+ Insurance Corporation was willing. to pay that motor vehicle . . - . accident compensation to the respondent and decree holder Fordia s/o Mwakyusa for the loss of his child incurred in the • said motor vehicle accident~ Now, it is being alleged by the applicants for this review that new facts have come to the forefront that. actually the NIC who was not made a 3rd party in this suit', but was the unsued outside party earmarked to bear the entire payment of the ; ~ __ judgeme~t·d~bt of shs.5,000 1 000/= has been ready throughout to bear :, ·. .. ·. . ~ ·: .·: ... . . . . '·

2 that burden only up to the extent of shs.300,000/=. That being the case the applicants pray this court to review its judgement so that the case is heard inter parties to prove whetlier the e.s1:•-e11de:nts, as defendants are bound by tortious liability and vicarious· liability to pay the entire shs.5gOOOpOOO/= or not. The learned Mro Mkurnbe advocate for the respondent Fbrdia Mwakyusa has opposed this review through the counter affidavit of the Staff-Sergeant Fordi·a Mwakyusa to effect that -th, advocate for the . I applicants the learned lY"lro Kayange is the one who himself mentioned. in court on 20401996 the figure .of shso5gOOO,OOO/= as the compensation they were ree.dy to pay to the respondent for tho accident killed son. As the time of taxation on 3006096 the same advocate again and did not dispute that figureo It was vex'atously / frivolousJfntendec to defeat justice to revert back from hls. undertaking of paying the C ompe nsa ti on Of S 118 o 5IIV = o. The learn:::d Mr. Mkumbe (Adv.) further co:nt::mded that actually, the said compensation of shs. 5m/= was quite fo.ir and commensurate " with the general damages awardable for a daath of a child a!l-4 thi3t i·t was a good i.;.ompromised amou.."1-t out of the total sum of shs.9800p000/= claimed in the plaint i,Jl the District Gour. For purposes of a review of a courts ovvm judgement already delivered there has to be ·a new development not envisaged by the l. parties at thG time of hearing of the case until the Ju.gement was delivered. This is the test vvl1ich the ai)plicent must satisfy before this court sets aside• or amends/varies i ti:{ ovm judgemento • 0 /3

. 1 3 ..:.. The new facts and c1eveloprnents being allec;ed here are that NiIC; who is to bear the Glitire paJnncnt of tl:.o d~~crctal debt with interest was ready throughout to pay only shse300rOOO/=.- This fa.ct was not know to tho learned 1·,l. Kayange (.Adv.) •rvhon he admitted in the District Court on 2. 4e 1996 that the a}li:;licants were ready to l)ay shs.; 5m/=.; fa) said so in there 8Xact words as shovm in the Written Statement of Dcfenifa - 3rcl p8ra :- 0 That the contents of paragraphs 5i 6,-, 7 P 8 1 & 9 of the plaint are disputed and the defendants stat0:-• that vide the contract betwaen the 1st defendant and the ll"(ational Insurance Corporation the letGr is liable· to pay in the event the defendants are found liable to pay the plaintiff and 2s s-u.ch the sc:.id National Insurance Corpor&tion is 11rocsssing to pay a compensation of a sum of the plaintiff .. tt In ibis ap:._)li cation it has been shovm tll;cit actually the NlC (National In.m;::rance Corporation) was processing a payment of Tshs,dOOfOOO/= as por credit note of.l:..1IC of 28~~- .. '95 in respect ·of the deceasod TlJiVIWIMIIIBGE ·1i70R:DI.A with the claim8.nt as being one Mre Fordia o; Mwak.yusa throu3h the Insurance :policy N_q,;278O65 of Godfrey Shao in respect of the Road Acci.El.ont of the motor ve.l:.u.cJ: TZE 3191 for -the accident Wl"Lich occured on 28b4.94 in claim No.;MB/Hc/2/00 29/95.; I hold that this is a new development being revealed now though in truth it existed o-vBn in 1995 relating tb', fact that l!"TC --.uas prepared to pay shs.300fOOO/= only and not shs.-5fOOO~OOO/= as it• was presented by the loa:r.nsd mro Kayange C.;dv .. ) in his w.s.n. the bar$3Jc$, 0 of the judgC;iT1.S11t by admission

4 ,• entered by- th:J District Court tmd as upheld by this court,. I therefore sot aside and vary parij of m,y jud:J:e1,10nt of 8,12. 98 to the following extent:- 1 .. Since there is no dispute as to th3 judgement debt e:n-tored by admission in respect of the said shs300,000/= the same: judgement debt by admission is hereby entered in favour of the rG:-3:;?0ndent S/Sgt .. F9rdi2 Mwakyusa. The a.ccree holder in respect of this amount is 1:-.,.re hereby allowed to,rccoivB and exocuto this decretal payment of shsJOO,OOO/= now without being deterred from proceedinc suing the responc1,ent-s in re'spect of the rest of' the claimed sum. of shs.9/8A0 9 000/= (minus) the 2.bove decretal sum of shs .. 300,000/= only covered in the plaint .. 2. The rc,mainder sum of shso4 9 700 7 000/= up.i1eld in my same judcomcnt of 8 .. 12 .. 98 is hereby set s:side entirely,. 3., My dismissal order of this appeal is varied to the r,xtent that now this appeal is partly allowed to the oxtent that the de:cretal sum by admission of the district court has b-,,en reduced frm shso5.,000 9 000/= to shs .. 300 9 000/=., Since the decret:l sum is quite mac1gru to less than 1 of the entc1--00. Judgement by w adiriis;;:,ion of shs.5m/= this appeal is novv allowed without any costs. Each p,arty to bear .r1his ovvn costs. 4. The same reduced decretal sum by admission of shs .. 300 9 000/= shall carry the court interest of 7; p~.ao from the day the lowor courtts judgement by 2cL:•Lission was delivered until its ft:.ll so ttlcnncn t • ..

I 'o . 5 .. .... 5~ Tho plGadings revert back to the :b:i.stric·l, Court in respco:t of all other matters covered i:h the pla_int artd I dire ct that tho NIC s,hall be joined as a third party and as a 3rd defendant who shall be se1"vcd for orde:bs with the copies of tho plaints and -.; vt S. D. of, __ the, dfendan:ts an-,-t4e 3rd :i_Jarty hoti6e ~ 6.; The main issue to bo deterciirted i~ t~: trial b&" the district bourt is Whocihor the 3 (hree) d.efn~~hts are liabl to pay the cxtr_a claims . ab_ove s.hs. 300_~ 600/~ . . decrot2l sum already entered by adinissicn and to what exterit~ Of cursc the tiai court is fre :to frame any triable issue-in addition as deened proper by court and the learned CounseJ..s from both sides• 7. This file is returned back to the District Court to continue with finalization of the pleadin&3 of the 3rd party and ultimate trial thereof. Each party can apply to amend its pleadings accordingly in the lower court. This case should be dealt with by the lower court the under Certificate of Urgency and by jurr:pin, queue of the District Court's work load to accommodate the special problems which have arisen out of this a,peal and review in JUDGE 7 /5/99 2nd Applicant Sekenke IViwak.yo ?B - Absent Er. l"bise for Both li.pplicants - present ' .