Lilian Onael Kileo versus Fauzia Jamal Mohamed; Commercial Case No. 135 of 2013: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
- Civil Procedure
- Pleadings – parties are bound by their pleadings.
- Pleadings- whether reply to written statement of defence is part of pleadings.
- Damages
- Special damages – special damages must be specifically pleaded and proved.
- General damages – when can be awarded?
- Evidence
- Pleadings – evidence does not support averments in the pleadings –effect.
- Witnesses – failure to call material witnesses – effect.
Held:-
(i) It is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded by the court.
(ii) It is settled law that parties are bound by their pleadings and that no party is allowed to present a case contrary to its pleadings.
(iii) A reply to the written statement of defence falls within the ambit of the term pleadings!
(iv) Where for undisclosed reasons a party fails to call a material witness on his side, the court is entitled to draw an inference that if the witnesses were called they would have given evidence contrary to the party’s interest. (Cited Hemed Said v. Mohamedi Mbilu [1984] TLR 113.)
(v) It is trite law in this jurisdiction (and elsewhere in the common wealth) founded upon prudence that special damages being exceptional in their character, must be pleaded specifically and strictly proved.
(vi) Special damages are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and, therefore, they must be claimed specifically and proved strictly. (Cited Stroms Bruks Aktie Bolag v. John Peter Hutchinson (1905) AC 515 at p.525) and Zuberi Augustino v. Anicet Mugabe [1992] TLR 137).
(vii) The Court in granting damages will determine an amount which will give the injured party reparation for the wrongful act and for all the direct and natural consequences of the wrongful act. (Cited Kibwana and Another v. Jumbe. (1990 – 1994) 1 EA 223).