19750529 TZHC Mwanza

IN THE JUGH COURT OP TANZANIA AT LWJ\N ZA (in) CIVIL APPEJl NO. 22 OF 1975 the decision of the District Court of 1kobà ULsl±Lct at Iikoba in Civil Appeal No 51 of 1974 Befom: I.K.Machumu Esq D.Lii. and Bu.hendangaba Primary Court Civil Case No. 9 of 1973). LEOtJRD MBOYMA -. . . . . . . .. . . . . . . . . . . . . . . . APPRLLJT VERS[J S .IT'.TATORHETEGEKO. ......•,•,••••.... .... RESPaDHTT J U D G E M E 11 T IVIPAIZELA, 3.: In the Primary Court of Bukobw district at hendagabo the appellant LEQAED LU3OYBIWA sued the respondent ANATORI BITEGJ!O claiming compensation amounting to BlisS. 35850 being the value of his crops destroyed by fire which he alleged was set to his sba]nba by the respondent. In suppt of4 claim, the appellant told the Primary Court that on 109/7 2 at about 5 n'' he wêit to his shamba and found that it had been completely destroyed by fire' Next day he was told by one CYIIAN that it was the respondent who set fire to his cropsl To him this confimed what one STOA and KASHUBAIII had told him earlierthat they had fmd the respthdent at the scene trying to pu.t out the fire After hearing fail evidenc e the primary court accepted the evidence of the appellant Ond his witnesses in whose favour they pronounced judement as prayed The respondent succOisfully appealed to the district court' In aJ,lowinC the appeal the learned district magLstrate held after visiting the site that considering the location of the shamba' it was difficult to pinpoint the respondent as the culprit and that he found it difficult to accept the evidence of P.W.2 The appellant then appealed to this court. A!ter a carofal review of the entire evidence on record s I am 4 satisfied that the decision of the leamed district moLstràte is the correct onet i3rstly going strictly by the evidence itself I find that sne of the appellant' s witnesses could not have been telling the tiutb. According to P OW.2 Cyprian, he,fOund the rOsondent 1rning grass in the vicinity of his shamba at 11 am.> an 13/9/72; but aOcórd±ng to P.W.3 Stoa he found the respondent Putting but'the fire at 3 p'm on the same day The differene between U am and 3 pm is too big to allow for any confusion in timing unless of course 'the róspondent had been Continuously pitting out the fire from morning to 3 p±n' which is unlikelyl Secondly I prefer the findings of the district magj.ztrate becense they are based on physical observations of the site, this enabled him to make an evaluation of the relative merits between the appellant 1 s version and that of the respondent. In addition one might Oven sympethisi With the respondent' a retcxrt that if the appellant had any genuine comp)int against lini he could not have waited for six months before filing his claim in courtl I must however mention that the appellant explained his delay on the basis that he was waiting for the outcene of the criminal piocoedings which incidentally ended in the respondent's acquitta1 As remarked, I agree with the district court that, the evidence led by the appellant in support of his claim against the respondent was not sufficienily tiust war -thy, and -that for this reason; his claim cannot be supparted With these remarks, I dismiss this appeal with costs' BJKOBA, L. VLIL.- 29T1-I IviA:Y, 1975