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SCHOOL OF LAW
AT DODOMA
BETWEEN
AND
Appeal from the Judgment of the High Court of Tanzania at Dodoma (Madam Justice
C.W. MAKURU) dated 27th August 2015 in Civil Case No. 04 of 2009)
MEMORANDAM OF APPEAL
MICHAEL TADEI and CHINA RAILWAY JIANCHANG ENGINEERING CO. LTD the
above-named appellant appeals to the Court of Appeal of Tanzania against the whole/part of the
above-mentioned decision on the following grounds, namely-
1. That the Learned Judge erred in law in holding that there is a relationship between the
employer and employee while there is no strong evidence adduced to prove the said
relation.
2. That the trial Judge erred in law in admitting a copy of medical examination from
Dodoma General Hospital and proceeding to give judgment infavour of the respondent
basing on that copy which is inadmissible because some of the receipt had no name and
date.
3. That the Trial Judge erred in law and in fact awarding the respondent a total sum of 81,
530,000/= (Eighty-one million five hundred and thirty thousand) as a general damages
4. That the trial Judge erred in law in deciding the case without hearing the appellant who
are the necessary party in the matter
WHERE AS the appellant prays that the appeal be allowed by quashing the entire judgment of
the trial court with costs.
Signed ………………………………………….
To: The Honourable the Justice of the Court of Appeal of Tanzania Lodged in the Registry at
Dodoma on this13 day of September 2015
………………………..
REGISTRAR
BEATRICE S. MCHANGA
P.O.BOX 67,
MAKURU STREET IN DODOMA
THE RESPONDENTS
DODOMA
IN THE COURT OF APPEAL OF TANZANIA
AT DODOMA
BETWEEN
AND
Before this Court is an application by the Applicant moving this Court to call for and examine
the record of the trial Court in Proceedings, Cause No. 04 of 2015, and the order made thereto on
the 27 August 2015 and we do pray as follows;
1) That this Honourable Court be pleased to call for and examine the record of the trial
Court in proceedings Cause No.04 of 2015 in the High Court of Tanzania at Dodoma
satisfy as to the correctness, legality, or propriety of the orders made therein.
2) That this Honourable Court be pleased to quash and set aside the order made by the
trial Court Cause No.04 0f 2105 in the High Court of Tanzania at Dodoma
3) Any other relief(s) this Honourable Court may deem fit and just to grant.
On 20 September 2015 when this Application was called on for mention, this Honourable Court
ordered the said application to be disposed of by way of written submissions. It is on the basis of
the order aforesaid we for and on behalf of the Applicant submit as follows.
YOUR LORDSHIP
On 21st May 2009 the respondent who is Mustaki Mohamed Mwanya instituted a case in the
High Court of Tanzania at Dodoma sues the second respondent China Railway Jiangchang
Engineering Co. Ltd under vicarious liability for the tortious act committed by the first appellant
Michael Tadei, its employee. On 3rd September 2008 the respondent while in the employment of
the second defendant as a mechanical technician and in the cause of his employment under the
instructions of the second appellant’s sight engineer at PSPS Ngo’ong’ona Dodoma. The first
appellant during the cause of his employment accidentally switched on the concrete mixer
caused the respondent’s four fingers and the palm of his right hand to be amputated by the
concrete mixer. Upon the determination of the case the trial Judge Awarded the respondent
Mustaki Mohamed Mwanya a total sum of Tsh. 81, 530,000/= (Eight One Million Five Hundred
and Thirty Thousand)
Being dissatisfied with the said decision the Applicant has invoked the power of this Court to
call and examine the said order, hence this Application.
YOUR LORDSHIP
Our solely submission therefore is based on as to whether the trial Judge erred in law to decide
the case without hearing the appellant side as required by the principle of natural justice.
To answer the above issue, firstly we have to consider the principle of natural justice one
important aspect of this principle is Audi Alteram Partem Which means the right to be heard.
This principle of natural justice means hear the other side or no man should be condemned
unheard or both the sides must be heard before passing any order. This principle is of the great
importance that a man should not be curtailed his freedom or liberty without being afforded an
opportunity to be heard. In R v Camborne Justices [1955] 1 QB 41 it was stated that a man party
is not to suffer in person or in purse without an opportunity of being heard.
Also in the case of R V University of Cambridge [1723] 1 Str 757. Whereby the Fortescue, J,
held that the first hearing in human history was given in the Garden of Eden. The Court
observed; “Even God himself did not pass sentence upon Adam, before he was called upon to
make his defence.”
Therefore, basing on the Principle of Natural Justice the right to be heard is paramount that
before deciding the case parties to the case should be given an opportunity to be heard without
any bias. However, with regard to this case the trial Judge decided the matter without hearing the
appellant side which leads to bias decision against the appellant.
Hence we please this hounarable court to consider the correctness, legality, or propriety of the
orders made therein.
YOUR LORDSHIP
It is obvious clear that the respondent was injured due to an accident and not negligence. Since
the respondent was worked with the second appellant for a long time and there is no any conflict
or misunderstanding between the two. Therefore, the cause of action that arose was a normal
accident which might occur in any cause of employment.
The term accident was defined by the “The Essential Law Dictionary” 1st Edition. 2008 at page
10. To mean that, “a chance occurrence or incident; an unforeseen and unintended event often
used to describe unfortunately occurrences, such as injury or mischap” However the trial Judge
had considered it as a tortious act, now we please this hounarable court to determine and
examine this matter in another better way, since the said cause of action was accidentally
occurred rather than negligence as it decided by the trial Judge.
YOUR LORDSHIP
With the above, we submit that this Honorable Court be pleased to quash and set aside the order
made by trial Judge in the ground that the presiding Judge had not determined the matter on
merit. Therefore, we please this hounarable to hear and determine the case in merit basing on
their good relationship between the employer and the employee before the occurrence of an
incident.
We humbly so submit.
……………………………….
APPLICANT’S ADVOCATE
……………………………………
COURT CLERK.
BEATRICE S. MCHANGA
P.O.BOX 67,
MAKURU STREET IN DODOMA
THE RESPONDENTS
DODOMA