Anthony Ngoo and Another versus Kitinda Kimaro; Civil Appeal No. 25 of 2014: Court of Appeal of Tanzania at Arusha (Unreported).
- Law of Contract
- Partnership – parties co–owned Primary Mining licence – whether it amounted to partnership.
- Special damages – must be specifically proved.
- General damages – must be justifiable
- Civil Procedure
- Issues – when the court may make a decision on non –issues?
- Costs - when costs can be granted to two advocates?
- Pleadings – Whether parties can be granted reliefs not prayed for in the pleadings.
- Interest – Whether interest is tenable at general damages
- Interest – what are the rates for interest?
Held:-
(i) Joint tenancy, tenancy in common, joint property, common property etc. does not of itself create a partnership. For there to be a partnership, the essential elements of partnership must be proved.
(ii) It is trite law, that special damages must be specifically pleaded and proved. In proving special damages, documentary evidence must be produced to prove the alleged loss.
(iii) Once a claim for a specific item is made, that claim must be strictly proved, else there would be no difference between a specific claim and a general one.
(iv) The law is settled that general damages are awarded by the trial judge after consideration and deliberation on the evidence on record able to justify the award. (Citing Stroms v. Hutchison, 1905 A.C. 515, ‘general damages’ are such as the law will presume to be the direct natural or probable consequences of the act complained of.
(v) Cases must be decided on the issues on record and if it is desired to raise other issues they must be placed on record by amendment.
(vi) The law is settled that the parties are bound by their own pleadings. The court cannot make out a new case altogether and grant relief neither prayed for in the plaint nor flows naturally from the plaint.
(vii) Interest on general damages is only due after the delivery of judgment because before then the principal amount due is unknown. The court has discretion to award interest for the period before the delivery of judgement only in special damages actually expended or incurred.
(viii) The rate of interest to be awarded during the period after the judgment is delivered is governed by section 29 and Order 20 Rule 21 of the CPC which is limited between the minimum of seven (7) per centum per annum and the maximum of twelve (12) per centum per annum.
(ix) The rate of interest to be awarded for the period prior to the delivery of judgment is set at the discretion of the court.
(x) The court may grant costs to two advocates after taking into consideration the complexity of the issues involved, the multiplicity of proceeding and authorities filed.