Court name
High Court of Tanzania

Revocatus I. Kidaha vs National Housing Corporation () [1988] TZHC 12 (01 June 1988);

Law report citations
1988 TLR 59 (TZHC)
Media neutral citation
[1988] TZHC 12
Coram
Msumi, J.

Msumi, J.: At the material time appellant was a legal tenant of the respondents' corporation occupying flat No. 187/X along Uhuru/Kigogo roads, Ilala area. It is C uncontroverted that on 10/9/75, without lawful cause, respondents evicted the appellant from the said rented flat. The eviction was effected in the absence of the appellant by forcing open the door to the flat and removing the households from therein. Though later on respondents admitted of the alleged unlawful eviction, they did not redress the wrong. D In other words appellant was neither reinstated to the said flat nor was he offered an alternative accommodation equivalent to the one in question. And despite the appellant's demand, respondents failed to restore to him some of his household items which they removed from the rented flat when they effected the said unlawful eviction. Among these E missing items is a refrigerator and a gas cooker. Hence appellant sued the respondents in the District Court praying for recovery of his missing household items or shs. 197,875/= as replacement value of the said items; shs. 2,125/= being special damages incurred by him in repairing some of his articles returned to him in damaged condition; Fgeneral damages in excess of shs. 20,000/= and a declaration that he is entitled to alternative accommodation reasonably equivalent to one from which he had been unlawfully evicted. The District Court sustained the appellant's prayer for shs. 2,125/= as special damage and for the declaratory order that he is entitled to alternative G accommodation. However, his claim for shs. 197,875/= being the replacement value of his missing articles was dismissed and instead the court ordered that he was only entitled to be paid shs. 29,162/= which was the cost of the said articles when he bought them sometime in 1974. Similarly, his claim for general damages in excess of shs. 20,000/= H was wholly rejected. This appeal is against these two findings.
The memorandum of appeal consists of two grounds. Elaborating the first ground Mr. Marando, the learned counsel for the appellant argued that the learned trial magistrate I erred in awarding the appellant the cost of the missing items instead of their replacement value. The aim should be to put the appellant in the

same position he had been immediately prior to the unlawful seizure of the goods. And A this goal can only be attained by awarding him an amount of money equivalent to the value of the said items at the time when they were taken. On the second ground of appeal, the learned counsel submitted that the circumstances of the case are such that B appellant is entitled to damages in excess of shs. 20,000/=. In reply, Mr. Rweyemamu from the Tanzania Legal Corporation argued that what the appellant was entitled to is the actual cost of the alleged goods and not their replacement value. Farthermore the court could not award him the replacement value of the goods in the absence of specific proof C of the alleged value. Similarly, the learned counsel went on to argue, the court was right in refusing the prayer for general damages in excess of shs. 20,000/= as the appellant has failed to establish that he has suffered any damage at all. D
Starting with the first ground of appeal, in essence what the appellant is saying is that he wants the respondents to return to him his missing household articles in the same condition as they had been at the time when they were taken. In the alternative, if for reasons known to themselves respondents are unable to return to him the said items, E then they should pay him some money equivalent to their market value at the time when they were seized. With respect this prayer is both legally and logically sound. It is consistent with the rationale of awarding damages to a victim of a civil wrong. As far as money can possibly do, plaintiff should be restored in the same condition he had been F immediately before the alleged actionable wrong was committed by the defendant. In the absence of reasonable explanation from the respondents on the whereabouts of the articles in issue, it is logical to assume that the same have been neglegently destroyed by the respondents. In such circumstances the law is quite clear viz. that the owner of such G articles is not only entitled to be paid the market value of such articles immediately before their destruction but also he may be paid any consequential loss resulting from such destruction. This expression is supported by the holding of the then Eastern African Court of Appeal in the case of Express Transport Company Limited v B.A.T. H Tanzania Limited [1968] E.A. 443 at p. 451 which says:
   Where an article has been destroyed by negligence, the owner of that article is entitled to recover from the person who negligently caused the destruction the market value of the article  I immediately before its destruction, together with any

   consequential loss following on the destruction of the article which is not too remote.  A
Thus appellant's claim for the market value of his missing articles at the time when they B were seized is consistent with a recognised principle of law. The only question in this case is whether appellant has managed to establish that at the time when they were taken, the said articles were worth shs. 197,875/=. These articles were taken on 10/9/75 and according to the testimony of the appellant they were bought sometime in 1974 for shs. 29,162/=. What the appellant is saying is that within a period of about one C year the value of these goods appreciated to shs. 197,875/=. If I may rely on my elementary knowledge in mathematics, this appreciation is about 1000 per cent. I take note of the fact that among the missing articles was a refrigerator, a gas cooker and D some musical gadgets whose value normally appreciates with time. However, I don't agree that within a span of only one year the appreciation of these goods was as much as 1000 per cent. There was an increase in value but not as much as that. It is a historical fact that from the year of independence to sometime in 1978 when we were forced into E the war against dictator Amin's forces, the country had been enjoying reasonable economic tranquility. Unlike the years which followed thereafter, there had been no soaring rises of costs of consumer goods. Hence in this case taking into account the nature of the alleged missing goods I am of the opinion that an increase of 20 per cent of F the original cost is reasonable. Accordingly appellant is entitled to shs. 36,000/= as replacement value of the articles in question immediately after they were unlawfully seized by the respondent about one year after they were bought.
As for the claim of general damages in excess of shs. 20,000/= I think it ought to be G upheld. Contrary to the view held by the learned trial magistrate, in order to succeed on this prayer appellant was not required to prove actual damage. In the English case of Interoven Stove Company Limited v Hibbard and Another [1936] 1 All ER at p.270 the court said: H
   An illegal distress has always been a trespass and an action would always lie ...... And where there is a trespass to goods, though no actual damage results, the law gives a right to recover damages not limited to actual damage sustained, but a right to recover substantial damages  I even though there be no proof of actual loss ......

This observation was quoted with approval by the Eastern African Court of Appeal in A Kassamali Bhogadia v M.A. Nasser [1963] E.A. 610. On my part I would add by saying that this principle is not only restricted to trespass to goods but it also extends to unlawful denial of one's right of use of land or premises. Thus in the present case whether or not appellant has suffered actual damage, he has the right to recover B substantial damages consequential to respondent's acts of trespass to his goods and the rented flat. Inclined to this view I am awarding the appellant shs. 100,000/= as general damage.
All in all this appeal succeeds with costs. C
Appeal allowed.

D