Haruna Chacha Gimonge vs the Executive Director Tarime District Council ((Hc) Civil Case No. 34 of 1989) [1998] TZHC 2037 (25 November 1998)
Judgment
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IN THE HIGH COURT OF TANZANIA ·
AT M'.•/ANZA ·.
(HC) CIVIL CASE NO. 34 OF 1989
HARUNA CHACHA GIMONGE •. • •. •. •·•. •·• •• • PLAINTIFF
• +- , '·.
VERSUS
THE En'CUTIVE DIRECTOR j·.
TARIME DISTRICT COUNCII;r:: • • • •I-T•4-.t:. • • DEFENDANT
JUDGMENT
L_!IGA!51NGIRA, J.
The P+aintiff operates a flour. mill at Muriba village in Tarime
district. Between 1987 and 1989 he was refused business licences by
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the defendant, a licensing atltliority, for reasons not relevant to
the i.."lSt$1t suit. The re,!u.ial {tava ,rise to Mis;cid'.118neous Civil Cause
-- ··-· ,\fJfri. . ,J! .
No.3/88. i~··.·&hich the plaitiff successfuly appliia'd for an order of
ma.darnus to compel the defegant to grant him a licence. The order
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was complied with on 23'.5.8<i. (Perhaps it should be mentioned in
section 22(1)(a). of the Business Licensing Act, 1972 passing that
provides for
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an alternativ medyt i.e. an appeal to the Minister by
any person aggrieved by any refusal by a licensing authority to grant '
a business licenc and it is assumed that this was considered in the ·
above ·cause.) Following his success, the plaintiff next instituted
the present suit claiming damages of 3,421,000/= in lq~t earnings £or
non-user of the mill i'or 622 days at the rate of ·· ,io/= per day'
In its written- statement the defendant did not de_ny liability fo; biit
qustioned the quantum of damages.
The basis of thls type of claim is, ·! think, sufficiently clear
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Abuse of governmental powers or what in England is called rnisfeasan1e in a public office, is one of those new or emergent torts for which d2m~.;,ges are recoverable,. The tort is committed when a damage is caused l I
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1:o th~ plaintiff by the malicious exercise of power by a public
servant or vorporation:. Bourgoip ':'.:.• stry ol..}._grculture
698§.7Q4B,716. In the words of Nourse, w, in Jones •
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Swanse!
C:ity Co\inc:i.l ["199<j/1 w.L.R.;4, 85,
The assumptions of honour and disinterest
on which the tort of misfeasance in. a
public office are founded are· deeply
rooted in the pol.'ity .of a free eoeie'ty• J,_,
It <JUght to b-e. \lllthink-6\ble that .tlly.lald<n-
of an
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plaintiff and I find on the evidence of the plaintiff's former
employee, PW2 Makubo Harun, _ that the plaintiff _suf4l'ffice of goven:unent ••• would
this ~ t.hat
i.&e. a powex. thUS' ve:,te-d' in him with.
the object of injuring a member of that
public b;y- who.a& trust.....tlOil-e. that. cff:i
is enjoyed.
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lt. lliaS admitted' tor he dendant. at. the• trial..ernme.otai power- we.s. e.xercised .contrary to law in relatio to.-d pe.,Ullialf.1'
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loos as a result. The "most troublesome aspect of thi_.s •al5e is t;f
'.determine thut. loss •.
Damages in the natue of los_t earning15 fall un;tler the •lass of
special damagt>,s and therefore require to be specifi•ally pleaded
and strictly proved~ It is not always. p,ssible, th91.lgh 1 to prove
&pec.ial dam.a.gee with absolute certainty but where loss is established
,
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-~ lf
· as having -~ 'eurred as. a .result of the • ---- tort, the eot\rt will d• the
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best it canwith the available evidence to arrive at the most reae;cnable \
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award and where there is evidence only of an infringement of a right
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without eviden.ca of loss, the plaintiff would at least be entitled to
nominal damages. In this case there was a: specifio plea of special
damages and two witnesses for the plaintiff testif:i,ed on the issue.,
I hasten to say, however, that the evidence of PW1 Enock Chacha, holder
of the plaint:iff
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s power of attorney, was essentially hearsay. Not only
did PW1 pro~ecut,s the plaintiff's •.!ase but he sought also to testify
t'
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to refer
on behalf of the plaintiff ancJLto financial records made by .the
latter. As·-ghtly submitted by .Mr. Byabusha, learned counsel for the
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defendant, t.1:e r_ole of a donce of a power of· attorney does not extend
to giving evidence for the donor \as can be seen from NAFCO v Mulbadaw
Village Council & Ors.{f98'iJT.L.. 88
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where the eourt of Appeal said
(at ,1):
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A person may act for. and represent·• another person. out
we know of no law or legal enactmnt whuh can pennit a person to
testify in plaoe of another." On the other hand, the evidenee of M,
though nGt such as to lead to absolute ,-ertainty, provides the
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esse.11±.i.aJ. ioU?Y.iati.oa upon which t6, b~.a. is.!. I will ·turn to
that evidence.
PW;2 was tho actual operator 'of the mill and told the court that he
used to colloot between 5,.000/= and ~ .t:rom. stomers daily whi.Al)
he handed over to the- plaintiff. ·rn the absence of evidence to the
contrary, I am prepared to find that the plaintiff' wa earning at
least 5,000/= per day/ The witness further said that the mill was not
in operation from May 1987 to May 1989 without being precise on the
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dates. I will take that to represent two omplete years or 731 days.
There were Saturdays, Sundays and public holidays which officially are
not working days. With fifty-two weeks in a year
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Saturdays and Swidays
~~unt t 1M days, i.e. 208 days in two years, When.these.are set orr
from ··· · 7,:r da::y-::,- there i~ a bnhnee of'~ daya (not 622 averred in
the plaint),. Public holidays are not less than eleven in a year, i,e.
· twenty-two in two years. That further.reduces working days to 500.
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At the rate of 5 1 000/= per day the earnings come to 2,500,000/= in
two years. PW2
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s own salary was 2
1
000/= per month and would therefore
have amounted to 48,000/= in two ye::Jrs. That would have reduced the
earnings to 2,462,000/=. There· would also have been expenditure O'I'.
fuel and maintenance of the mill and, of course, the mill would have be.en
disfunctioncll during maintenance. And l~st but by no means least
the plaint if!' s earnings would he,ve attracted income tax. It is
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imposeible to tell how much these factors would have demanded on the .
earnings yet they cannot be ignored. Payment of income tax in
particulal' ia both a legal obligation and a public duty and no one
gain
should be ·a11owed to l by the avoidance of .it. • The plaintiff
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could have assisted the coW:t to approach the tax question with a
degree of certainty by availing t~ it. evidence of previ~us
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-assessments but he avoided the subject-despite ample signals throughout
the proceeding •• In this and other_matters, therefc;,re, the court is
left to its wisdom. After giving tho matter the most anxious
consideration, I etermina the plaintff
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s nett earnings at 1,400
1
000,,
for the two yeare.
In the result, judgment is entered for the plaintiff in the
sum of 1
1
400
1
000/= with interest at c_burt ro.te from the delivery
of judgment to the date of satisfaction. The plaintiff will
also have his eost_s.
JuDGE
MWANZA. 10/11/98. .. DR to de~iver_judgment. K.S.K.LUGAKINGIRA JUDGE
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