Automated Summary
Key Facts
On 5th January 2014, Plaintiffs Nahir Ali Issa and Ali Maulid Haji sued Coastal Fast Ferries LTD, Azam Marine Fast Ferries Co. LTD, Alliance Insurance Corp. LTD, and Zanzibar Maritime Authority claiming they were passengers on the ferry boat Killimanjaro II which encountered an accident while traveling from Pemba to Unguja-Zanzibar. The plaintiffs alleged they fell into the sea during the incident and suffered injuries, seeking compensation of Tsh. 200,000,000 plus Tsh. 50,000,000 for general damages. The court found the plaintiffs failed to prove they were passengers on the vessel as they did not tender tickets, boarding passes, passenger manifest, or other documentary evidence. The case was dismissed with costs in favor of the defendants.
Issues
- What are the relief(s) sought by the plaintiffs in this case
- If the first issue is in the affirmative, whether the plaintiff fell from the boat into the sea as the result of the accident
- If the second issue is in the affirmative, whether the plaintiffs did suffer any injuries and damages
- Whether the plaintiffs were passengers on board when the ferry boat in the name of Kilimanjaro II was involved in an accident on 05/01/2014 while on its way from Pemba to Unguja (Zanzibar)
- If the third issue is in the affirmative, whether the injuries and damages suffered by the plaintiffs are among the perils covered under the insurance policy between the 1st and 2nd defendant and the 3rd defendant
Holdings
The court held that the plaintiffs failed to meet their burden of proof under section 117 of the Evidence Act, 2016, as they did not provide documentary evidence such as tickets, passenger manifests, or independent witness testimony to establish they were passengers on the Kilimanjaro II ferry when the accident occurred on 05/01/2014. The first and second defendants denied the plaintiffs were passengers, and the third defendant denied insurance liability. The court found the plaintiffs' evidence insufficient and the first issue was answered in the negative, which suffocated all subsequent issues. Consequently, the suit was dismissed with costs in favour of the defendants.
Legal Principles
The court applied section 117 of the Evidence Act, 2016, establishing that the burden of proof rests on the party who instituted the suit and desires judgment in their favour. The principle that 'he who alleges must prove' was central to the decision, requiring the plaintiffs to prove they were passengers on the vessel Kilimanjaro II on 05/01/2014. The court held that without substantive documentary evidence such as tickets, passenger manifests, or police reports, the plaintiffs failed to discharge their burden of proof on the balance of probabilities.
Precedent Name
Abdul Karim vs Raymond Nchimbi Alois and Another
Cited Statute
Evidence Act, 2016
Judge Name
G. J. Kazi
Passage Text
- "From the evidence on records, plaintiffs testified as PW1 and PW3, they just narrated what happened on the material day and insisted that they were on board of the vessel, they did not call any witness to support their story that they were among the passengers on the said boat. Further, they even failed to tender any document, such as ticket or boarding pass, a police report, medical report, passenger manifest etc which, under the circumstances of this suit, in one way or another, may support their evidence."
- "Therefore, as the first issue is answered in the negative, it suffocates the second, third, fourth and fifth issues in which they died peacefully. In final result therefore, the suit is decided in favour of the defendants, consequently the same is dismissed with costs. Dated at Zanzibar this 27th day of April 2022. G. J. KAZI - JUDGE"
- "The burden of proof lies to the one who instituted the suit, the one who wants the court to believe him and to deliver judgement in his favour, and above all, in civil litigation the proof is on the balance of probabilities that is why the burden lies to a party who alleged the existence of certain facts. Thus, section 117 of the EA state clearly to whom the burden of proof lies, that: '117(1) whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist.'
Damages / Relief Type
- Tsh. 200,000,000/- for compensation and indemnity for injury
- Tsh. 50,000,000/- for general damages