Ramadhani and Omar, JJ.A. and Mapigano, Ag. J.A.: The respondent, Anicet E Mugabe, sued two people: the appellant, Zuberi Augustino, and another person who was the second defendant, Daudi Missana, who was found not at fault and so did not have a reason to appeal.
The respondent owns a Toyota mini bus with registration number TZ 84061. He F wanted to sell it so he asked the appellant to look up for prospective buyers. The bus was entrusted to the appellant who drove it from Nyegezi to Amini Mungu Garage in Mwanza town where it was agreed that it would be kept. That was on 2/12/1988. Two days later, on 4/12/88, the respondent was told that the bus had broken down at G Kisesa. It was not denied that the engine of the bus was blown off and the respondent towed the vehicle to Mabula Garage where it is to date.
The High Court of Tanzania at Mwanza (Munyera, J.) found the appellant at fault and awarded the respondents Shs. 500,000/= he had prayed for as repair costs, another H Shs. 500,000/= for the non-use of the bus and Shs. 1,000,000/= to off set the devaluation of the shilling.
The appellant was represented by Mr. Magongo, learned advocate, and he had six grounds of appeal which in the course of hearing he abandoned all but two. In the first I ground the complaint is that special damages have been granted by the learned judge which
RAMADHANI JJA, OMAR JJA, MAPIGANO Ag.JA
were not specifically proved and indeed the award for the non-use had not even been A specifically pleaded. Then the other ground is that the devaluation at the rate of 200% granted by the learned judge is manifestly excessive.
The respondent was not represented and in effect did not make any submissions in reply to the two grounds of appeal. B
It is trite law, and we need not cite any authority, that special damages must be specifically pleaded and proved. Cost of repair was pleaded but not proved. The respondent merely stated it to be Shs. 500,000/=. However, the learned trial judge was satisfied that the engine of the bus was completely blown off and is in fact beyond C repair. It is a notorious fact that prices are rising in astronomic proportions and that the amount pleaded cannot even buy a reconditioned engine. So though repair costs have not been specifically proved we allow the amount pleaded. Then as already said, non-use was not all pleaded. However, it was not disputed that the appellant was D using the bus for passenger trips between Mwanza town and Kisesa and the engine was damaged in that process. He definately got some advantage which he should not be left to benefit from his wrongful acts. We agree with Mr. Magongo that the respondent intended to sell the bus. But that could not proclude him from putting it into use. EBesides, he wanted to sell the bus so as to realise money with which to buy a tractor which he believed would be more profitable. Those plans have yet to materialise. So it is our well considered opinion that the respondent is entitled to some relief and we would sustain the award of Shs. 500,000/= under the prayer of "any other relief this Court F may deem just and fit to grant". We so grant.
The award for devaluation has exercised our minds greatly. We hold it as a fact needing no proof that the value of our shilling has been going down very fast. However, we agree with Mr. Magongo that the rate of 200% is very high. We think a 50% rate is G reasonable in the circumstances of this case. Thus we allow shs. 250,000/= for the devaluation.
In the end result we grant a total of Shs. 1,250,000/= with an interest of 10% from the date the vehicle was damaged, that is 4/12/1988, to the date of payment. H
The appeal is dismissed except to the extent allowed above. The appellant is to pay 75% of the costs both here and below.
I Appeal dismissed.
A
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