Ms Fishcorp Limited versus Ilala Municipal Council; Commercial Case No 16 of 2012; High Court of Tanzania (Commercial Division) at Dar es Salaam. (Unreported).
- Civil Procedure
- Interest – whether tenable in general damages before judgment.
- Damages
- General damages – How it can be determined and when it is payable?
- Loss of business – loss of business falls within the realm of special damages – It should be pleaded and proved.
Held:-
(i) General damages are never quantified: they are paid at the discretion of the court and, on that score, it is the court which decides which amount to award. That is, if the damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question (Cited Admiralty Commissioners v.Susque-Hanna (1926) AC 655).
(ii) 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 unnatural consequences of the wrongful acts. (Cited Kibwana & Another v. Jumbe ( 1990 – 1994) 1 EA 223).
(iii) It is the law that loss of business falls with the realm of special damages which must be specifically pleaded and proved. Whether loss of business is pleaded as such or as loss of profit directly, evidence as to the existence of such business prior to the loss and to what extent or in what quantity it existed is necessary. Likewise as for profit which is part of business, there must be clear indication of how much profit was being gained from such business or how much that business was useful/profitable (Cited Masolele General Agencies v. Africa Inland Church Tanzania (1994)TRL 192 where the Court of Appeal of Tanzania refused to accept the appellant’s mere statement of loss of business without any documentary evidence)
(iv) Loss of business, once pleaded, damage must be strictly proved and as such it is compensable specifically under the head of specific damages.
(v) Interest on general damages is only due after the delivery of judgement because then the principle amount is known. The court has discretion to award interest for the period before the delivery of judgement on special damages actually expended or incurred but even this at such rate as the court thinks reasonable. This discretion does not extend to the period after the delivery of judgement. The rate of interest to be awarded during the period after judgement is delivery is governed by the provisions of Order 20 Rule 21 of the Civil Procedure Code which is limited between the minimum of 7% per annual and the maximum of 12% per annual (Cited Said Kibwana and General Tyre E.A ltd v. Rose Jumble (1993)TLR 175 CA ).