BEDA NICHALUS

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY) AT IJC MOROGORO. CIVIL APPEAL NO.27770 OF 2023 (Originating from the decision of the District Court of Kilosa in Civil Case No.01 of 2023) BEDA NICHALUS KILASI…….………………………..…1ST APPELLANT THOMAS AMOS KIBULA……………………………………2ND APPELLANT VERSUS MATINDA MAUMBI…………………………………………. RESPONDENT JUDGEMENT 27th of June ,2024. MANSOOR, J. Briefly, the facts of the case are that the appellants herein own a farm, a paddy plantation in Kilosa District. They claim that on 17th November 2021, the cows/ cattle belonging to the respondent entered the farm and destroyed about 20 acres of paddy worth THz 29,760,000/=. The farm attendant managed to apprehend the cows and kept them under the Village Office, but Page 1 of 20 a while later, two Maasai boys who were herding the cows forcefully took them away from the farm/office. The appellants allege that the farm attendant was able to identify the cows by their markings/charter, they were all marked with a Mark or Charter VII. The matter was reported to police, and to the village leaders, the destruction was assessed by the Agricultural Officer “Bwana Shamba”, and the value of the destruction was estimated to be TZS 29,760,000/=, and the Valuation Report was filed and was received as evidence and marked as Exhibit ‘P1’. The farm owners who are the appellants herein decided to file a case in the District Court of Kilosa via Civil Case No. 01 of 2023 against the owner of the cattle who is the respondent herein, claiming for THz 30,000,000/=, as specific damages. They also claimed for general damages and punitive damages. After full trial, the suit was dismissed as the Trial Magistrate ruled out that the plaintiffs were not able to prove the claim on the required standard of proof. Dissatisfied, the appellants filed an appeal before this Court raising the following grounds; Page 2 of 20 1. That the trial court erred in law and facts by not considering the strong appellants case against the respondent without assigning any legal reasons. 2. That the trial court erred in law and in facts by holding that the respondent was not seen at the scene of event while it was not among the issues framed in the case. 3. That the trial court erred in law and in facts by ignoring the evidence of the charter V 11 which used to identify the respondent’s cows into the plaintiff farms hence unfair judgment. 4. That the trial court erred in law and in facts by ignoring the evidence by the appellant case that the cows were taken from the village office by Maasai boys including the son of the respondent without giving any legal reason hence bad reasoning which lead to the unfair judgment. 5. That the trial court erred in law and in facts by ignoring the valuation report which was admitted in the court hence injustice. The appeal was argued by the way of written submissions, and the appellants enjoyed the services of Advocate James Clement Mwakalosi, while the respondent was served by Advocate Saul Sikalumba. Page 3 of 20 In their written submissions, the appellants consolidated grounds No. 1, 3, and 4 and argued them as one ground, while ground 2 and 5 were argued separately; Grounds No. 1, 3 and 4 is on failure of the Magistrate to properly evaluate the evidence. The appellants argue that in the effort of proving the claim, they paraded four witnesses, including the eye witness who testified as PW1. PW1, the farm caretaker saw the cows entering the appellants’ farm. He also explained how he saw and identified the markings on those cows with the mark or charter V 11, and said the cows marked with charter belongs to the respondent herein. PW1 gave evidence that he was able to apprehend the cows and took them to the village office and how the two Maasai boys, one of them was the son of the respondent who forcefully took the cows from the Village Office. The appellants argue that the Trial Magistrate did not consider at all the evidence of PW1, the caretaker of the farm, and who was familiar with all the villagers and who owns what as he lived in the village for a long time. That the Magistrate ignored the basic principles of judgment writing, and on this he referred the court to the case of HUSSEIN IDD & ANOTHER v R (1986) T.L.R 166, in which it was held: Page 4 of 20 “It was a serious error and misdirection for the trial court to ignore the plaintiff evidence” Regarding the 2nd ground of appeal that the Trial Magistrate decided on an issue which was not an agreed issue during trial. The appellant’s states that the issues agreed by the parties and recorded by the court were only three as follows: 1. whether the defendant’s cows destroyed the plaintiff’s farm, 2. whether the defendant was involved in that destruction of crops, 3. what the reliefs’ parties are entitled to. The appellants argue that the Trial Magistrate made a decision on a new issue of whether it was proper to sue the respondent herein instead of those Maasai boys who went to take away the cows from the village office. That the Trial Magistrate discussed and made a decision on this new issue without affording a chance to parties to address the Court. The appellants refer to Order XIV Rule 5 of the Civil Procedure Code Cap 33 R.E 2019, which empowers the trial court to amend or even strike out issues framed when composing a judgement. The appellant argues that this power under Order XIV Rule 5 of the CPC can only be exercised after affording parties a chance Page 5 of 20 of hearing. They say, this has resulted in unfair trial and to buttress their arguments they refer to the decision in the of Jamal Ahmed v CRDB Bank LTD, Civil Appeal No. 52 of 2010 (CAT- DAR-ES-SALAAM) in which the Court of Appeal held that; “Cases must be decided on issues on record and where new issues are not founded on the pleadings, parties should be given opportunity to address the court”. The appellants therefore argue that they were denied their fundamental rights of hearing on the new issue raised by the court. On ground No. 5 that the trial court ignored the valuation report which shows the extent of destruction of the crops in the farm of the appellants caused by the cows. Also, the Magistrate at trial ignored the exhibits collectively marked as P3, which were the agreement or contracts between the appellants and ASA to lease the 50 acres to cultivate paddy rice. Those contracts were attested by the Respondent Advocate Saul Sikalumba who also acted as the defendant’s counsel during trial. The plaintiffs submit that in paragraph 8 of the plaint they said Advocate Sikalumba who appeared for the respondent in trial was the advocate who attested the contracts and Page 6 of 20 ought to have stepped down, but he did not do so, and continued to conduct the case, for his client was the defendant in the trial court. The appellants argue that Advocate Saul Sikalumba clearly infringed Section 7 of the Notaries Public and Commissioner for oaths Act Cap 12 R.E 2019, which prohibits commissioner for oaths to act as an advocate to any party if he is interested. The appellants also referred to the case of Calico Textile Industries LTD v Zenon Investiments LTD (1999) T.L.R 100, and the case of Salum Nassor Mattar (Administrator of the Estate of the Late Mattar Rashid Mattar) v Bharat Bhagwanji Laxman & Rohyt Bhagwanji Laxman, Land case No. 15 of 2017, Agatho, J had this to say; “It is immaterial whether it is contract or an affidavit that an advocate has acted upon as a commissioner for oaths……. While time is of the essence as to when the advocate acted as commissioner for oaths…… the essence of stopping advocate from representing a client to which he acted as a commissioner for oaths is that there is a conflict of interest, or the context of the case suggest that the advocate may be called as a witness in a case for which he attested /witnesses its pleadings” Page 7 of 20 Advocate Saul Sikalumba filed areply submissions on behalf of the respondent. Replying to ground No. 1,3 and 4, the Counsel argues that although the appellants’ paraded four witnesses during trial and tendered exhibits but still they failed to prove the important fact that it was the defendants’ cows who entered the farm and destroyed the crops. He argues that PW1 who was the farm caretaker and an eye witnesses said the incident happened at early morning hours around 5.00 a.m in the morning and it was still dark, and it was not clear if he was able to identify the two Maasai boys who went to the Village Office to forcefully take the cows from the office. That PW1 only said he knew one of the boy to be the son of the respondent since he lived in the village for a long time and knows everybody in the village. The Counsel also argues that there was no proof tendered in court from the Registry Officer responsible for identifying the charter marked on the cows. He argues that the marking of the cows is governed by the Livestock Identification, Registration and Traceability Act No 12 of 2010, and the registry of cows with their charter (marks) are recorded. Since the respondent denied to own the cows with Charter VII, the appellants were duty bound to bring proof from the registry to prove that the cows with charter VII belongs to the respondent, they failed to do so, thus there were Page 8 of 20 no proof brought to court by the appellants to prove that the cattle who destroyed the crops belongs to the respondent. The counsel for the appellant supports the judgement of the trial magistrate saying that if at all it is true that the son of the appellant was seen taking away the cattle from the village officer, he is to be sued and not his father. The counsel finds support in the case of Jeremiah Shemweta vs Republic 1985 TLR 228, and says where there is doubt in the evidence, the doubt should be resolved in favor of the opposite party. Regarding ground 2, the Counsel for the respondent states that the trial Magistrate confined herself/himself in the three issues raised and recorded, and never raised any new issue. In answering issue no 2, which was on the respondent’s involvement in the destruction of the rice paddy, the trial Magistrate had to discuss as to who was found herding the cattle or who was seen taking away the cattle from the village officer, and argued that this was not a new issue but an issue falling under issue no 2 recorded by the court. On ground No. 5, the counsel for the respondent states that the trial magistrate discussed the valuation report on page 2 of the judgement. That Page 9 of 20 this report was tendered by PW2, and it was admitted as Exhibit P1, and that the Magistrate disregarded the Report as during the valuation of the destroyed rice paddy, the respondent herein was not involved. Regarding the new ground added in the submissions by the Counsels for the Appellants about the misconduct of an Advocate who attested the document involved in the case, and at the same time appearing in court representing one of the parties, I agree that the Counsels for the appellants ought to have asked for the leave of the court to add a new ground of appeal, and as stated in the case of Twagira vs AG and others (2009) 1 EA 418 at page 425, the court will only consider and determine those grounds of appeal set out in the Memorandum of Appeal and not beyond that. Since the issue of an Advocate conflicting the provisions of the Advocates Act or the Notaries Public and Commissioner for Oaths Act, Cap 12 R: E 2009, was not one of the grounds of appeal mentioned in the Memorandum of Appeal, I shall refrain from entertaining it. Now, having considered the counsels’ submissions, the case law and the legal provisions of the law cited, as well as having carefully gone through the records, the issue that requires determination of the Court is whether Page 10 of 20 the case of the appellants was proved on the required standard of balance of probabilities. Mind you that this is a civil matter and the standard of proof differs from that of proof beyond reasonable doubt required in proving the criminal cases. This is not a criminal charge of malicious damage to property as stated by the Trial Magistrate in the first paragraph of his judgement. This is a tortious matter and must not be proved with the same strictness as a criminal charge. The onus which lay upon an appellant /plaintiffs of proving the charge of malicious damage to property was different from the onus which lay upon plaintiffs in a civil suit and Magistrate had applied a wrong standard. I take support in the case of Cower V. Cower', 1950-1 All ER 804 (A) where Lord Justice Denning argued that the criminal standard of proof was not appropriate on a charge of adultery. Also the case of Wright v Wright 77 Comm WLR 191 (B) where the Court discussed the question whether the standard of proof in a divorce suit is the same as that in a criminal case, and Lord McDermott said: "I am unable to subscribe to the view which, though not propounded here, has had its adherents, namely, that on its true construction the word "satisfied" is capable of connoting something less than proof beyond reasonable doubt." continued-- Page 11 of 20 In civil matter the Court need to be "satisfied", that the evidence presented are cogent and true, which is something less than proof beyond reasonable doubt. The standard of proof in a civil suit is preponderance of probabilities and the standard of proof in a criminal case is proof beyond reasonable doubt. The question to be determined is whether the evidence adduced by the plaintiffs at trial were enough to prove the case of the appellants/plaintiffs on the preponderance of probabilities. I have particularly examined the evidence of PW1, the caretaker who saw the herd of cattle entering the farm on 17th November, 2021, at early morning hours and destroyed 20 acres of paddy. PW1 was at the farm, he apprehended the cattle and kept them under the care of the village office. He noticed and recognised the markings in the cows and since he was the residence of the village, and since he knew everybody in the village, he was able to know who owns the cattle and mentioned the respondent herein. Again, the two Maasai boys appeared at the scene, and forcefully took away the cattle. PW1 saw the two boys and recognised one of them to be the Son of the respondent. The matter was reported to police and to the Village Leaders, and everybody in the Village knew that the cows which entered the Page 12 of 20 farm of the appellants belongs to the respondent’s. From the judgement of the Trial Magistrate, the issue that he laboured to determine is not whether the rice paddy was trespassed by the cattle and that the cattle destroyed the paddy, the issue he concentrated to determine is whether there was proof that the cattle that trespassed the paddy belongs to the respondent. This means that it was an undisputed fact that on the fateful day a herd of cattle entered the farm of the appellants and destroyed the rice paddy. The Magistrate also seems to agree that the evidence of PW1 was credible and uncontroverted since it is true that the two Maasai boys were seen at the scene, and took away the herds of cattle from the scene, and this is why he came to the conclusion that since the boy was seen and recognised by PW1 he should be the one to be sued and not the cattle owner. This position would have been correct if it was a criminal trial, but in tortious liability cases it is permitted to task the cattle owner as the wrong doer to compensate the victim who suffers loss as a result of his failure to observe his duty of care, as he owes a duty of care to the farmers. He owes a duty of care to make sure that he does not graze his cattle in the farms, and if he violates that duty, can be tasked/ made liable for compensation. Page 13 of 20 From the evidence on record, and the evidence of PW1, which was supported by the valuation Report produced by PW2 to prove that crops of the value stated in that Report was destroyed, which evidence was not challenged by the respondent during cross examination or even by the defence case, the fact that there were herds of cattle who invaded the rice paddy on 17 November 2021 and destroyed the rice paddy valued at the value stated in the Report was proved in the required standard. It is on record that PW1 Hussein Hamad Kaimu stated that he was working at the appellant’s farm and on 17th November 2021 at around 5:00 a.m. a herd of cattle of the respondent entered the appellants’ farm and destroyed the paddy. The appellants also stated that the incident was reported to the Village Officials, the cattle were kept under restraint but later on the respondent’s son accompanied by another Maasai boy went to the office and took away the cattle. The matter was also reported to the Bwana Shamba ‘Agriculture Officer’ who went to the farm to assess the damage and the report of the assessment of the damage was received in court as evidence. The Bwana Shamba namely Holival Manga who testified as PW2, said he was called by the Village Leaders to carry out an assessment of the appellants’ Page 14 of 20 crops destroyed by the cattle, and before he started the evaluation he called the respondent who refused to cooperate. This witness came in after the event. He therefore did not witness the trespass being committed. That leaves only PW1 who testified that he had actually seen the Respondent’s cows trespass on the Appellants’ paddy plantation and destroying the paddy. The respondents gave his defence whereby he only denied that the cows that trespassed on the appellant’s plantation did not belong to him, and that he was not involved in the evaluation of the damage. In the circumstances, I find that had the learned Magistrate given the evidence before him sufficient scrutiny he would have believed the appellants and his witnesses and found that the Respondent’s cattle did, in the month of November 2021, trespass onto the Appellants farm, and I so find. There was proof adduced by the Appellants and their witnesses that the cattle entered the plantation, they destroyed the paddy, and the cows belonged to the respondent, and no one else. There was evidence from PW1 that he is the villager, he knows that the cattle with mark VII belongs to the Page 15 of 20 respondent. His evidence was not contradicted by the respondent’s defence which was an evasive denial and nothing else. The evidence of PW1 on an issue that he saw the son of the respondent taking away the cattle was not also contracted by the respondent’s defence evidence, and even the Magistrate had accepted this evidence which corroborates the evidence of PW1 that the cattle that entered the appellant’s farm and destroyed the paddy belongs to the respondent’s. Now having found that the evidence adduced by the appellant was able to prove that the cattle of the respondent’s entered the appellants farm and destroyed the paddy worth THz 29,960,000/=, I shall now examine the claim of THz 30,000,000 /= as compensation for the crops damaged. This claim comprises 20 acres of paddy which would have produced 16 bags of rice for each acre. Each bag contains 1600 kilograms at THz 1200 per kilogram. Thus, 20 acres’ damages costs THz 29,760,000. In essence, this is a claim for special damages and, as such, must not only be specifically pleaded but must also be strictly proved. This was proved by PW2, the Bwana Shamba, who on 18 November 2021 in the presence of the Village Chairman visited the appellants’ farm with instructions to assess the Page 16 of 20 damage caused to the farm by straying cattle. The witness tendered in evidence a report which was admitted as Exhibit P2. In his report, 20 acres’ of plantation had been damaged and he put the damage at THz 29,760,000/=. The witness stated that he had estimated the value on the basis of the market value of rice at that time. This witness does not talk about any soil excavation or any other damage to the farm. Specific damages must be proved. See, Boham Carter V/S Hyde Park Hotel (1994) 64 TLR 178. The onus of proof was on the plaintiffs . I find that through the Report of Bwana Shamba which was, availed to Court the appellants were on the balance probabilities able to prove their claim of TZS 29,760,000/= being a claim for damages of the paddy. I shall allow this amount as specific damage. As a general principle, damages in tort are compensatory in nature. A party who suffers damage due to a wrongful act of the other must be put in the position he would have been had he not suffered the wrong. The appellants were entitled to the exclusive use of their farm. Their right were interfered with when the Respondent’s cattle were left un attended, which entered the farm which was planted and taken care of and inevitably, fed on pasture Page 17 of 20 intended for agriculture and perhaps for business. The appellant was in the circumstance entitled to reasonable compensation for the damage and inconvenience suffered. In the court below, the appellant had prayed for general damages of THz 10,000,000/=. In the circumstances, I find that general damages of THz 5,000,000/= is reasonable and the appellants are awarded the same. The appellants are also awarded interest at the rate of 25% per annum from the date of this judgment until payment is full. They are also awarded the costs of the appeal. On the issue of whether the Magistrate traveled beyond the issues recorded by the Court, I disagree with the arguments raised by the appellants’ counsel, and I agree with the submissions fronted by the counsel for the respondent that it was necessary to discuss an issue of the presence of the respondent in the incident so as to reach into the conclusion that it was the respondent’s cows or not that had trespassed their plantation. The issue discussed did not fall outside the issues recorded by the Court. With regards to ground No. 5, regarding the evaluation Report (Exhibit P2), this issue was covered hereinabove when I was discussing the 1st 3rd and 4th grounds, and shall reiterate the reason thereto. That the Evaluation Page 18 of 20 Report could only be discussed in assessing the specific damage suffered by the appellants, but since the trial Magistrate was of the different view that it wasn’t the cattle of the respondent who destroyed the plantation, he surely could not have been in a position to discuss the damages suffered. The evaluation of Exhibit P2 was dependent entirely on the determination of liability of the respondent in the destruction of the plantation. Having found that the respondent is tortuously liable and that there was proof on the preponderance of probabilities that his cattle entered the appellants’ plantation and destroyed the paddy, and having awarded the appellants the specific as well as the general damages, interests and costs of the suit, this appeal is allowed to the extent above explained, with costs. DATED AND DELIVERED AT MOROGORO THIS 27th DAY OF JUNE 2024. L.MANSOOR JUDGE 27/06/2024 Page 19 of 20 Page 20 of 20