19871202 TZHC Dar es Salaam

IN THE HIGH COURT OF TA~ZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 19 OF 1986 (ORIGINAL KlLOSA D/COURT CIVIL CASE N0.12 OF i985) ABINEL LAMECK eo o o • oooe-o,o o o o • o o o o o • APPELLANT versus JEREMIA MKOGA. ••o•oo•oooeooooo.o• RESPONDENTS YOSEF MNAMBO MKOGA J U D G ME NT _The appellant unsuccee•fully sued the resp ·ndents for shs.97,500/= in the Distrkt court of Kilosa(Upaga s.o.r1. }. He is .. now appealing tn this c~urt. The shs,97,500/= was a t~tal fjgure for claims falling under heads broken dnwn by the learned trial Magistrate in his judgment as follows:- 1. shs.16,000/= being the value nf 40 bags of maize which the appellant claimed the respondents had harvested from his 5 acre shamba. 2. shs.40,000/=, being the value of his sugar cane the appellant alleged the respondents .had cut from his shamba while he was in j aH. 3. Shs.~•000/= whjch the appellant ~lleged the respondents tonk fr-m him at the tjme ~t hjs arrest by the respondents. 4. shs.22,000/c being c~mpensatj,n t'"' the appellant by the respondents f--t the 1-io days the ap~ellant spent in prison follcwfog a malici "'US C'"'mplaint made agajnst him by the 1st respondent that he had st . . len maize fr m the resp~nctents• shamba. The background to the matter j5 that the parties were in dispute over a shamba measuring five acres. Each claimed -,wnership over it. on 6.7.1984 the first resp~ndent sp'"'tted the appellant harvesting maize from the shamba. He (the first resp--ndent) is the son of the second responctento He raised an alarm and many vjllagers responded. They apprehended the appellant and t~0k hjm to Gairo p0l ice station for stealing resp'"'ndents• maize _fr~m the shambao At the police station where he was searched and taken t · the Pdmary (:()urt, Gajro,Lhe was charged ,.. with stealing.the maize. He was tried and f,.,und guilty at that court. He was c·nvicted and sentenced t0 twelve m-nths• imprisonment. He was· aggrieved by his conviction and he appealed t'"' the District aoo•o•o•oo•/2 2 court ~t Kil~sa. His appeal was allnwed and he was released from jajl after having.served 110 days ~ut --,f the twelve months of his imprjsnnment,. on his release fr--m jail he f--,und_ that the maize from the shamba in dispute had been harvested. This is what f0rmed the first head nf his claim against the respondents - f,...,r b• aawrned that they must be the ,...,nes wh,.., had harvested the maize •. Then he said he found his 4 acre farm -,f sugar cane harvested also. This c...,nstitutes the 2nd claim under the head set out ab,we. He then,-,filed this suit in Kilosa oistrkt Cnurt claiming shs.16,000/= and 40,000/:for the maize and sugar cane respectively. He also claimed c-impensation for the 110 days he had spent in pris,...,n, alleging that the complaint by the respAndents that he had st...,llen the maize fr""m the shamba in dispute had been m'°de malici,..,usly. under thfa head as shown already, he claimed shs.?2,000/= at the rate of shs.200/= per day. Finally, he claimed that when he was being arrested fnllowing the alarm raisec:l by the first respnndent shs.3,000/= was taken frr,m him. He sought compensation f'"'r this 1--,ss. summarising the defence of the resp~ndents, the learned trial Magistrate itat~d:- "The 1st defendant ~n his behalf and that of the 2nd defendant g,ve a very reas<"'nabie acc,,unt on the matter. tte.,ad~itted that there was a dispute between the plaintiff and the 2nd defendant 0ver the 5 acre.piece of land but the maize then gt,wing ")nit was really planted by the 2nd defendant· who had even hired lab0urers to do that job. The matter was consistently C'1_nfirmcd by the defendants• ten-cell leader Nels0n Yosiah(nw.4). AS to what transpired ,.,n 5/6/1984 we have the evidenc0 of two t nther witnesses summ"'_ned by the defendants, naudi ~·Ilirnbo (Dw2) and Emmanuel Macholanga (ow3) thdt 1st defendant raised an alarm when he spotted the plaintiff collecting majze fr"'m the disputed shamba. When they responded to the place they t .,.._Jc the plaintiff t0 a CCM branch Office but he refused t0 make any statement.• so DW3 in his capacity as a miljtiaman esc,..,rted the plaintiff to Gairo police stati,.,n. While at the c:0unter of that Police station, the plaintiff was searched and was traced with cash shs.502/= of which 2/= was fr,..,m a pocket of his coat and shs. 500/= fr'1m his tr("luser p'"lckets. All· wj_tnesses deny that the plaintiff was robbe4t of shs.3,,000/= at the time r,f his apprehension. They deny also having seen the defendants cutd.ng the alleged four acre shamba. 3 concernjng the wjtnesses f,.,r the appellant the learned trial Magistrate nbserved that they cnuld n0t specific~lly di~close the number of bags ,.,f maize harvested fr"'m the shamba nor could they say was with certaint)' if the sugar cane,L actually cut by· the respondents as alleged by the appellant while he was in jpil. I haye g-.ne thr~ugh the evidence of these witnesses and I find that the learned trial Magistrate•s nbservat~on is correct. on the evidence as summarised ab-.ve the trial Magi~trate dismissed the appellant, s claim holding that, (i) The evid~ce did n"t establish the elleged harvesting by the ~espondents of sugar ca~e fr0m the appellant•s shambaa (ii) The majze harvested fr---m the 5 acre shamba had been planted by the ~espnndents (the 2nd respondent in particular) and the appellant c-.uld not claim any c-.mpensati...,n fr:ir it. (i1i) The cornp1aint made by the resp,ndents about the ~ appellant having been caught stealing maize from the 5 acre Shi:imba was justified and n'""lt made maliciously as t> the respondents genuinely believed that he was stealing their maize and the Prjmary Cnurt in fact convicted the appellant f,.,r stealing the maize; ( iv) The evidence did n(')t establish the allegation that the resp--ndents had taken 3,000/= from the appellant at the time ~f his apprehension. Lo0king at the case as a ~h~le I am unable t~_hold myself that the trial Magistrate erred in reaching the c~nclusi~rs and haldings summarised ab~ve. on the evidence he was qujte entitled to hold as he did on all the points and dismiss the appellant•s caseo AS the maize in the fjve acre shamba was. planted by the respondents I cannot see how he (the appell._r,t) c(\uld claim that the respondents were actuated by malice in initiating the appellan~s apprehension and eventual pr-,secutj ...,n and c,..,nviction fr,r stealing the maize •. In ~y view the appellant had decided t0 be stubborn; instead of resolving a~d settling first the questi0n nf a 0wnershjp of the shamba he deci4ed to invade the shamba {even bef0re that issue had veen settled) and harvest maize planted by the resp,--.ndents. He cannot f?.OW be he.:1rd to complain· that he was apprehended and pr0secuted maliciously for doing that. The evidence as to who harvested the sugar cane establishes nothing agaioat the resp,.,nqent. so ~s the evidence about, the shs.3,000/=;. All in all, I am 0f the settled view that the appellant, s appeal . 4 to this court hae no merits at all. on 1012.1987 I dismissed it but reserved my reasons for doing so. It is for the reasons that I have now endeav~ured to set out above that I dismissed it. 1 /// ( IG.l1 L.A.Ao KYANDO JUDGE DAR ES. SALAAM 2ND DECEMBER, 1987