nyanza bottling company ltd applicant versus makere ... - Tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIAIN THE DISTRICT REGISTRY OF SHINYANGA

AT SHINYANGA

CIVIL APPEAL NO.1 OF 2020(Arising from Civil Case No.6 of 2018 in the District Court of Shinyanga)

NYANZA BOTTLING COM PANY LTD APPLICANT

VERSUS

MAKERE GACHUMA 1 ST RESPONDENT

UAP INSURANCE TANZANIA LTD 2ND RESPONDENT

TANZINDIA ASSURANCE CO. LTD 3RD RESPONDENT

YUSUPH SHEIKH 4TH RESPONDENT

JUDGMENT1f17 July & f17 August, 2021

MKWIZU, J:

Fourth respondent filed a civil suit at the District Court of Shinyanga vide

Civil Case No.6 of 2018. The suit was against four defendants namely,

Makere Gachuma, Nyanza Bottling Company Ltd, UAP

Insuarance Tanzania Ltd and Tanzindia Assurance Company Ltd.

The appellant was claiming from the defendants jointly and severally the

sum of Tshs. 100,000,000/= being special damages for the loss of earning

during the time of treatment and general damages to be assessed by the

court as a result of injuries suffered by the plaintiff in the road.

1

The facts on the record reveals that, on 22nd April, 2015, 4th respondent (

original plaintiff) was traveling as a passenger in the bus with Registration

No. T148 BKK insured by the 3rd Respondent ( original 4thdefendant) from

Mwanza to Tabora. While at Samuye Village in Shinyanga region, 1st

respondent (original 1st defendant), a driver of a lorry with Regitration

NO.T.207 BSA Scania with a trailer with Reg. No. T635 AJT the property

of the Appellant (original 2nd defendant), recklessly and negligently drove

the vehicle such that it knoked the bus in which the 4th respondent

boarded causing a tragic accident resulting into serious injuries to the 4th

respondent herein.

The records are to the effect that, pt respondent was arraigned before

Shinyanga District Court with an offence of causing death and injuries for

dangerous driving of a motor vehicle Cis 40,27(1) (a) and 63 (20 (a) of

the road Traffic Act Cap 168 R E 2002 in a Traffic criminal Case No 20 of

2015. He was convicted and accordingly sentenced.

First respondent did not respond to the claim. He neither filed a written

statement of defence nor appeared and therefore the suit proceeded ex-

parte against him. Appellant denied the allegations that she had employed

1strespondent and that she owns the vehicle with registration No. T. 207

2

BSA Scania. Second respondent denied all the claims in the plaint while

3rd respondent admitted the fact that she is the insurer of the bus which

met the accident. She as well denied the rest of the claim.

After a full trial, the trial court found in favour of the 4th respondent

(plaintiff) . He was awarded 100,000,000/= special damages for loss of

salaries calculated as the rate of 5,000,000/= times 20

months;50,OOO,OOO/=general damages and interests of 30% commercial

rate in both general and special damages awarded and g% interest from

the judgement date to the date of full payment. The costs of the suit were

also part of the award.

Appellant is dissatisfied, she has filed this appeal on the following

grounds:

1. Tttst; the trial magistrate erred in both of law and facts by finding

the appellant liable while she was a wrong party to the suit.

2. Thst; the trial magistrate wrongly established that the appellant is

vicarious liable to the acts of the I" defendant at trial court without

evidence of employment relationship.

3. Thet; the trial magistrate erred in both point of law and facts and

wrongly reached to a conclusion that the I" defendant was tortuous

liable to the plaintiff.

3

4. That, the trial magistrate erred in both point of law and facts by

awarding the respondent herein specific damages without evidence

of the said demsaes, alternatively without taking consideration to

statutory deductions.

5. That, the trial court erred in law by finding both insured and insurer

jointly liable to compensate the respondent herein.

6. That, the trial court erred in law by awarding special damages

basing on an illegal contract of service between the respondent

he~mandh6aUegedemphye~

7. That, the trial court erred in law by awarding general damages of

Tanzanianshillings fifty million (Tzs 5~OO~OOO)without showing

how it reached to that sum.

8. That, the trial court wrongly awarded interest to the respondent

herein.

9. That, the trial court failed to properly analyze evidence hence

reached into a wrong conclusion.

At the hearing, appellant was represented by Mr. Endrew Luhigo learned

advocate, Mr. Pharles Malengo was for the 2nd respondent, Richard Deus

advocate appeared for the 3rd respondent and Mr. Siraji Kwikima advocate

was for the 4th respondent. pt respondent's physical address were not

known for service purposes thus, on 4/5/2020 appellant prayed and was

granted leave to serve him by way of substituted service. The service was

done through Mwananchi newspaper dated 19/5/2020 and the appeal

4

proceeded exparte after failure by the 1st respondent to enter appearance

after such a service hence this exparte judgement against the pt

respondent.

Submitting for the appeal, Mr. Luhigo prayed to argue grounds 1, 2 and

3 together 4, 6 and 9 together and 5th and 7th one after the other. On

grounds 1, 2 and 3 he said, the appellant (original 2nd defendant) was

sued as a wrong part at the trial court. Appellant was mentioned in

paragraph 3 of the plaint as a defendant and on 27/4/2018 the appellant's

Written Statement of Defence raised a preliminary objection alleging that

she is a wrong party to the suit.

In her Written Statement of Defence particularly paragraph 2, 3, 4, 6 and

9, appellant denied to have any connection with the suit. She contested

the claim that she had employed 1st Defendant Makere Gachuma, at the

time of accident. Appellant's counsel stated that, appellant was connected

to the suit through paragraph 7 of the plaint, where she was alleged to

be the owner of the vehicle Scania Lory with Registration No. T. 207 BSA

and the Trailer with Registration No. T 635 AJT involved in the accident.

5

Mr. Luhigo submitted further that the fact that, appellant is not the owner

of the vehicle in dispute was expressed in the Written Statement of

Defence, the presented evidence and is supported by the plaintiff's own

evidence particularly Exhibit P3 - (Vehicle Inspection Reports) in relation

of the Scania T. 207 BSA (Vehicle Inspection Report No. 1443871) which

mentions the owner of this Scania as NBCLDistribution Limited, Vehicle

Inspection Report for the Trailer No. T 635 AJT (Vehicle Inspection Report

No. 1443877) indicating that the owner is NBCL Distribution Limited;

Exhibit 6, Insurance Cover Note No. 7355158 for the Scania No. T. 207

BSA and Cover Note No. 7467246 for the Trailer No. T. 635 AJT where

the Insured was introduced as NDCL. Mr. Luhigo submitted that, it is the

position of the law that who alleges must prove and because plaintiff was

alleging the appellant to be the owner of the two vehicles, he ought to

have proved his allegation.

To prove that appellant is the owner of the alleged motor vehicle, plaintiff

was required under section 15 of the Road Traffic Act Cap 168, read

together with section 100 (1) of the Law of Evidence Act Cap 6 RE 2019

to produce Registration Cards of the said Motor Vehicle. The omission by

the plaintiff (4th Respondent), stated Mr. Luhigo, to produce the vehicle

registration card requires the court to draw an adverse inference against

6

him. He, on this point, cited the case of Hemedi Said Vs. Mohamedi

Mbilu [1984] TLR 113; Azizi Abdala V.R, [1991] TLR 71 and Mathe

Bilhwangero EnosiVs. Muhindo Oniz, HCT -01 CV - CA -0. 49 of 2016

of Uganda. He insisted that appellant was wrongly sued and the trial

court misdirected itself to find that appellant was tortious liable to the

plaintiff (now 4th Respondent).

On grounds 4, 6 and 9 he argued that, the trial court failed to analyse the

evidence leading to a wrong conclusion on what are the entitlement of

the plaintiffs ( now 4th respondent).Special damages were granted strictly

on a contract of service between the plaintiff and the third party allegedly

his employment contract admitted as exhibit P9.Mr. Luhigo explained that

the said contract was irregularly admitted because it had no stamp duty

as required under section 47 of the Stamp Duty Act Cap 189.

Arguing in the alternative, appellant counsel said, One, the contract of

service alone could not be enough to prove that plaintiff (now 4th

respondent) was actually receiving that sum of money as a monthly salary

without tendering a salary slip which is a document recognised under the

law particularly section 27 (2) of the Employment and Labour Relations

Act of 2004. Two that, the trial court awarded the plaintiff the total sum

7

of 100,000,000/= which is 20 months' salaries while paragraph 13 of the

plaint, the claim was for eight months only which the plaintiff expressly

said to have been absent from work. The trial court, clarified Mr Luhigo,

awarded extra 12 months as specific damages un pleaded by the plaintiff.

Three that, the plaintiff's claim of special damages was because the

employer could not pay him salaries for he was not working. On this

appellant's counsel was of the view that in such a situation, the remedy

was not to sue the tortfeasors, the plaintiff was required under section 32

of the Employment and Labour Relations Act No.2 of 2004 to claim from

his employer four months sick leave. Again, stated Mr. Luhiqo, no

evidence of termination of 4th respondent's employment after the four

months sick leave and therefore no proof of specific damages. Four, even

assuming that plaintiff was entitled to any number of months, it was still

wrong for the trial court to award him on gross salary because section 28

(1) (a) of the Employment and Labour Relations Act, such salaries was

subject to deduction such as taxes and Pension Funds Contributions.

On ground 7, the appellant counsel challenged the award of 50,000,000

general damages. He said, the trial court failed to show the base of the

award. The case of Cooper Motors Corporation Ltd V. Moshi/ Arusha

8

Occupational Healthy Servicers [1990J TLR 96 was cited on this

ground.

Regarding the 5thground said, Mr. Luhigo, trial court erred in finding both

insurer and insured jointly liable to compensate the 4th Respondent. The

two issuers 2nd and 3rd Respondent together with the alleged insured the

appellant, were found jointly liable to compensate the plaintiff the decreed

sum contrary to the principles of insurance because it was to be known

specifically as to who is responsible whether insurer or insured and to

what extent. If all were to be liable, then the court ought to have indicated

the extent of each one's liability.

He lastly prayed for the appeal to be allowed with costs at the trial court

as well as in this appeal.

Mr. Pharles Malengo for the 2nd Respondent supported the appeal and all

the submissions by the appellant's counsel. He in addition cited the case

of Zuberi Augustino Vs. Anset Mugaba [1992J TLR 137 stressing that

specific damaged must be proved. He said,4th Respondent, did not plead

12 months therefore, the trial court erred in awarding months which were

not pleaded. Like the appellant, Mr Malengo prayed for the court to allow

the appeal with costs.

9

On his party, Mr. Deus Richard for the 3rd respondent subscribed to the

submissions by the appellant's counsel with few additions on grounds 1,

2 and 3 argued collectively and ground 5. He contended that, according

to the pleadings, the complained accident involved two vehicles. The Lory

- Scania and Bus Registered as T. 148 BKK boarded by the 4th

Respondent. While 3rd Respondent is said to be an insurer

of the Bus in question, the owner of the bus has never been a party to

this case. To accommodate the insurer in this case, the relationship

between the insurer and insured must be established which is not the

case in this case. He, for those reasons supported the appeal.

Mr. Kwikima on the other hand, was in support of the trial court's decision.

He started his submissions by attacking the issue of non-joinder of parties

raised by the 3rd respondent arguing that it is a new ground raised at this

appellate stage contrary to Order XXXIX rule 2 of the CPCCap 33 RE2019.

He argued that, joinder of parties must be taken at an earliest opportunity

possible and therefore, 3rd Respondent was supposed to complain at the

trial court and not at this stage. On this he cited provisions of Order I Rule

13 of the CPC,Cap 33 RE 2019. Mr. Kwikima admitted that, owner of the

bus was not sued and the link between the 3rd Respondent and the bus

10

owner was not established but 3rd Respondent did not complaint and no

appeal was preferred against the trial court's decision. To establish

whether the claim was proved to the required standard, Mr. Kwikima

invited this court, as a first appellate court to re-evaluate the evidence on

the record.

Arguing on the complaint that appellant was a wrong part to the suit for

there was no proof of ownership of the Scania and its trailer, Mr. Kwikima

submitted that evidence on the records points out that the 1st Respondent

was at the time of the accident an employee of the appellant on the

reasons that one, pt Respondent was charged and convicted as per

Exhibit P4. At page 6 of Exhibit P4 indicates that 1st Respondent's sureties

J. Kwiliba and Yohana Bunwai were employees of Nyanza Bottling Co and

they declared before the court that they were bailing out their co-worker

cpt respondent).

Two, that 2nd Respondent's witness, Julius Sambia identified the vehicle

with registration No. T. 207 BSAas a property of the appellant and that it

was brought to them for insurance purposes. He said in their Insurance

Cover Note, Nyanza Bottling Company Limited was presented by initial -

NBCL and the Insurance Cover Notes were admitted as Exhibit P6. Mr

11

Kwikima was of the view that, the ownership of the vehicle and

employment relationship of the driver and the owner of the vehicle in

question was well established in the balance of probabilities and therefore

trial court was justified in finding the appellant vicarious liable.

On grounds 4, 6 and 9 Mr Kwikima said, both special and general damages

were justified. While admitting that special damages must be specifically

pleaded and proved. He said, Exhibit 9, employment agreement between

4th respondent and his employer proved what the 4th respondent was

earning per month with specified terms that 4th Respondent would not be

paid his monthly salary if he is not in completion of a full calendar month

assignment save for holidays. In this case, stated Mr. Kwikima, his client

was unable to serve 20 months after the accident.

Responding to the appellant's submissions that in paragraph 13 of the

plaint, it was indicated that plaintiff (4th Respondent) failed to serve only

8 months under the alleged contract, Mr Kwikima said, the 20 months

period were the months which had remained in 4th respondent's contract

and therefore were to be compensated.

On why the salary slip was not produced as evidence in court, He said,

the trial court based its findings on the contract of service. This being a

12

civil matter proof is on the balance of probabilities and therefore plaintiff

managed to prove that he was earning 5,000,000/= per month and he

suggested that the absence of the stamp duty on the contract of service

admitted in court is not material. He gave two reasons, one that non-

payment of stamp duty does not vitiate a contract and secondly that

stamp duty Act does not give specific time on which the stamp duty should

be paid in respect of any document. According to the Court of Appeal

decisions, stated Mr. Kwikima, the courts are directed to give time to the

holder of document to pay for unpaid stamp duty. He in the alternative,

prayed for the court not to consider this issue under Order 39 Rule 2

because it is a new issue which was not part of the memorandum of

appeal or raised when the said document was tendered in court.

While insisting that 4th respondent managed to establish that he had not

worked for more than 20 months after the accident, he agreed that under

section 32 of the Employment and Labour Relations Act, an employer is

statutory bound to provide full four month sick leave to an employee who

suffered injury and therefore the 1st four months of the 4th Respondent's

sickness was an obligation of his employer and therefore should be

deducted from the 20 months awarded.

13

On the submissions that no evidence of termination of his employment

after the four months of sick leave and therefore no proof of specific

damages, he said, the contract was very clear that 4th respondent was on

medical treatment for 8 months and after that he was advised to take rest

and therefore, he could not work. On statutory deductions issue, he said

that, the consideration was to be done on the payment of the awarded

amount and not at the trial stage.

Responding to the issue relating to general damages, Mr. Kwikima cited

the case of The Cooper Motors (supra) stating that, general damages

are within the discretion of the court. The appellate court can only

interfere where trial court failed to consider relevant facts or considered

irrelevant facts on the matter which is not the case here. He said, the

trial court did consider the extent of injuries suffered by the plaintiff. He

prayed for the dismissal of grounds 4, 6 and 9.

Mr. Kwikima argued that 5th ground is baseless. Both insured and the

insurer are joint tortfeasors and in tortuous liability they are jointlv

liable. He at the end prayed for the dismissal of the appeal with costs.

The rejoinder submissions were essentially reiterations of the appellant's

submissions in chief, I will for those reasons not recapitulate it here.

14

I have cautiously and keenly evaluated the evidence on the records, the

grounds of appeal and submissions by parties' counsels. To avoid

confusion and for consistence, I will determine the grounds of appeal in

four categories as presented by the parties' counsels during hearing of

this appeal.

The first three grounds of appeal essentially challenge the trial court's

decision for holding appellant vicarious liable without proof. This

complaint lies on two main reasons, that no evidence was brought to

prove that appellant was/is the owner of the vehicle caused the accident

and that she had employed the pt respondent to drive the vehicle in

question. In other words, the appellant is complaining that the vicarious

liability alleged against her was not proved by the 4th respondent.

It is not in dispute that 1st respondent was a driver of the Motor Vehicle

T207 BSA with a trailer with registration No. T.635 AJT. It is not

controverted also that 1st respondent was charged, convicted and

subsequently sentenced for dangerous driving in Traffic criminal case No

20 of 2015. The dispute is on whether the appellant is vicariously liable

for the acts committed by the 1st respondent. In Machame Kaskazini

lS

Corporation Limited (Lambo Estate) v. Aikaeli Mbowe [1984] TLR

70, the court held thus:

"In order to render the employer liable for the

employee's act it is necessary to show that the

employee, in doing the act which occasioned

the injury, was acting in the course of his

employment. An employer is not liable if the act

which gave rise to the injury was an independent act

unconnected with the employees employment If at

the time when the injury took place, the

employee was engaged, not on his employer's

business, but on his own, the relationship of

employer and employee does not exist and the

employer is not therefore liable to third persons

for the manner in which it isperformed. since he

is in the position of a stranger. " (Emphasisadded)

Again, in Lazaro v Mgomera [1986-1989] 1 EA 302 it was stated;

'~n employer is vicariously liable if his servant

commits a tort in the course and within the scope

of his employment This does not absolve the

liability of the servant but only means that the

employer is also liable as the tort was committed

when the servant was supposed to be acting in

place of or for the employer. whose act it

becomes':

16

Interpreted from the above decisions is that, the employer is liable for the

torts of the servant so long only as the alleged wrong was committed in

the course of the servant's employment. That being the position which I

fully subscribe, the truth is, to succeed against the appellant in this case

it must be proved that appellant is the owner of the vehicle which caused

the accident and that the driver (1st respondent) committed the alleged

wrong while in an employment commitment with the appellant.

It is evident from the 4th respondent's evidence at page 33-34 of the

records that, at the time of accident, 1st respondent was driving a lorry

property of appellant insured by the 2nd respondent - UAP Insurance Co

Limited. The Motor vehicle inspection reports and the insurance cover

notes were tendered in court as exhibit P3 and P6 respectively. As rightly

submitted by Mr. Luhigo, 4th respondent's evidence, Exhibit P3 - Vehicle

Inspection Reports in relation to the Scania T. 207 BSA and Trailer No. T

635 AJT (Reports No. 1443871 and No. 1443877) describe the owner of

the Scania involved in the accident as NBCL Distribution Limited

whereas the Insurance Cover Notes Exhibit P 6, introduces the owner of

the same vehicle as NDCL. The above evidence is supported by the

evidence of DW1 at page 45 of the records. In his defence, DW1 explained

the difference between the two companies that is appellant and NBCL

17

Distributor limited. He said, appellant, Nyanza Bottling Co Limited is the

producer of Coca-Cola and Dasani products, and the NBCL Distribution

Limited is a company dealing with the distribution of the products

produced by Nyanza Bottling Co Limited. DW1 also informed the court

that 1st respondent was a driver to NBCL Distribution Limited at the

time of the accident.

The issue for solution by this court is whether appellant, Nyanza

Bottling Co limited is the same NBCL Distributors limited and jor

NDCL. This confusion is brought about by the documentary evidence

tendered in court by the plaintiffs himself. Appellant is a registered

company. In my view, a registered name of a company is a crucial issue

when it comes to its identity. This is so because a slight change in the

name may mean another competent and legal recognized company with

a different legal capacity. Emphasizing on the importance of names,

Court of Appeal in Civil Appeal No. 110 Of 2017 CRDB Bank Pic

(Formerly CRDB (1996) Ltd Vs. George Mathew Kilindu, held inter

alia that:

1~ •• Names of parties is central to their identification in

litigation. Bothparties are limited liability companieswith all

18

attributes. If one changes its name, it becomes a

different legal entity, altogether ... F/ (Bold is mine)

The name of the appellant (the then 2nd defendant at the trial court) is

Nyanza Bottling Co limited. Meaning that by its name, appellant is an

independent legal entity capable of being sued or sue on her own name.

It is treated like any other independent person with rights and liabilities

appropriate to itself. Thus, to have a valid claim against the appellant

evidence must be led to prove that appellant's company is responsible

to the alleged wrong and this being a civil suit, the burden is on the

plaintiff.

The evidence brought by the 4th respondent is very straight forward that

the owner of the Scania 207 BSA and trailer No T 635 AJT driven by the

pt respondent at the time of accident is the NBCL Distribution Limited.

This was proved by the vehicle inspection report (exhibit P3) relied upon

by the plaintiff. Unfortunately, the NBCL Distribution Limited was not a

party to the suit.

DW2, 3rd defendant's witness before the trial court gave evidence in

support of the plaintiff (now 4th respondent). DW2 supported the evidence

in exhibit P6 that Motor Vehicle in question are the properties of Nyanza

19

Bottling Co Limited and were insured by the 3rd Defendant, now (2nd

respondent). I have perused exhibit P6, the owner of the vehicle in that

document is NDCL, no further description of the police holder was given

in the Insurance cover Notes. Reading their contents, Insurance Cover

Notes were to include important information of the Police Holder and

the particulars of the vehicle like, the name of the Police holder ( insured),

address, date of commencement of the insurance, expiry date, name of

the vehicle covered, colour, registration Number of the vehicle in question,

engine and chassis number, make of the vehicle, Body type, cc, year of

manufacture, carrying and Seating capacity, insured estimate value, date

of issue, name of the agency involved and authorising signature. In all

the two Insurance cover Notes tendered in court (exhibit P6), the name

of the Police Holder was recorded in a short Form NDCL, address, name

of the vehicle covered, colour, engine and chassis number, Body type, cc,

carrying and Seating capacity, were not recorded. To say the least, the

information in Exhibit P6 are not descriptive enough to disclose with

certainty the Police Holder (insured) and no other explanation on the

records were given to convince this court that, the appellant, Nyanza

Bottling Co Limited is the same NBCL Distribution Company Limited the

owner of the above named vehicle or the NDCLthe holder of the tendered

insurance Cover Notes. Plaintiff's clarification on the ownership of the

20

vehicle is so contradictory such that it is difficult for this court to conclude

with precision on who is the owner. It is, for the above reasons, without

doubt that plaintiff failed to prove the ownership of the vehicle involved

in the accident complained of.

If that is not enough, plaintiff, now 4th respondent failed also to prove that

pt respondent was an employee of the appellant in this matter. The facts

contained in Exhibit P4 - courts proceedings in Criminal Traffic case No.

20 of 2015 that 1st Respondent's sureties J. Kwiliba and Yohana Bunwai

are employees of Nyanza Bottling Co Ltd do not conclusively prove that

1st respondent was an employee of the Nyanza Bottling Co Limited under

whose control the vehicle was at the time of accident. And even assuming

that the fact was so proved, still without proof of ownership of the vehicle,

the claim against the appellant remains unproved. Generally, 4th

respondent failed to prove his claim against the appellant in this matter.

I find the first three grounds of appeal meriting. This conclusion disposes

off the 4,6,7 ,8 and 9 ground of appeal.

Before penning off I feel obliged to discuss a little bit on the 5th ground of

appeal in which the trial court's decision is faulted for finding both the

insured and insurer jointly liable to compensate the 4th respondent. I have

21

evaluated the trial courts records. As stated earlier on, plaintiffs claim is

tort was in nature under vicarious liability principle which hooks vicarious

responsibility on the master for the wrong act done by his /her servant.

Complainant in such a case as stated earlier on, must prove; the liability

of the wrongdoer (servant); the relationship of master and servant; and

that the servant acted in the course of his employment with the master.

Insurance company's responsibilities to a third party comes in only after

the liability of the insured person is ascertained. The third party's right

against the insurer is only restricted where he has a statutory right to sue

or has obtained a judgement against the insured (Motor vehicle owner)

and only to the extent of the amount covered by the insurance policy

(between the insurer and insured). This is the import of section 10 (1) of

the Motor vehicle Insurance Act which states:

"It. after a policy of insurance has been effected, judgment

in respect of any liability as is required to be covered by a

policy under paragraph (b) of section 5 of this Act (being a

liability covered by the terms of the policy) is obtained

against any person insured by the policy...the insurer shall

subject to the provisions of this section, pay to the persons

entitled to the benefit of the judgment any sum payable

thereunder in respect of the liabili~ including any amount

22

payable in respect of costs and any sum payable in respect

of interest on that sum by virtue of any enactment relating

to interest on judaments"

It is from the above section of the law that when an insurance company

pays any sum to the third party, it makes payment for and on behalf of

its client, the insured. z= and 3rd respondents were the insurers of the

appellant and the bus in which the 4th respondent had boarded

respectively. As explained above, their engagement to the claim by the

4th respondent would come in after their clients - the insured are found

liable for the alleged tort. And the extent of their liability would have been

determined through their insurance policy.

The trial court went amiss. The owner of the bus T 148 BKKwas not made

a party of the proceedings of the trial court. This is the person on whose

behalf, the 3rd respondent would have been responsible. Thus, it was

wrong for the trial court to find the insurer, 3rd respondent liable without

any liability on the party of the insured. Secondly, the defendants were all

found jointly liable without ascertainment of each one's extent of liability

contrary to the insurance laws and procedure.

I, for the above reasons agree with Mr Deus Richard, 3rd respondent's

counsel that claims against the 3rd respondent was too remote because of

lack of connectivity between the two. There is no way, the 3rd respondent

could be found liable for the tort committed by the 1st respondent. 5th

ground of appeal is also allowed.

23

That said, the appeal is allowed with costs. Order accordingly.

Dated at Shinyanga, this 06 day of August, 2021.

COURT: Right of appeal explained.

24