201709NA TZHC Mwanza

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA PC CIVIL APPEAL NUMBER 05 OF 2017 (Originating From C/v//Appeal No 06 of 2016 of the District Court Of Kwimba District at Ngudu) C IIISTOIPII ER BUSALIJ •••• U U • ••••• U.. • • ••• . APPELLANT VERSUS. ELIKNA SAIiAI1I. ........................................ RESPOF1DE14T

JUDGMENT 05.09.2017 & 15.09.2017 Matupa, J. Originally, the appellant succeeded on a criminal claim against the respondent. Among the reliefs which were granted in the criminal case was an order for compensation of shillings seventy thousand shillings. This does not appear, to be in contention between the parties. Subsequent to the decision of the • court in that case, the appellant instituted •a case in the Primary :i '61K I,, Court of Nyamilama, claiming compensation for shillings 8,000,0001- for the crop destruction. At the conclusion of the case, the court was inclined to award shillings 372, 5001=.. The appellant was, not satisfied by the decision. He appealed to the district court contending that the compensation did not reflect the then economic situation. This time around, he claimed the compensation of shillings 2,700,0001=. The learned appellate magistrate dismissed the appeal. He did not end there. He also quashed the proceedings and decision' of the trial court which awarded the appellant shillings 372,5001=; on the ground that the document which was relied upon to calculate the damages' did not bear the official stamp of the officer who did the valuation and that, it was a copy. It was therefore wrongly admitted in evidence. This last decision of the District court also displeased the appellant. He has therefore filed this appeal to challenge

the decision. 2 Parties to the appeal were not represented, they therefore represented themselves. Indeed, they did not have anything useful to add to their respective petitions and reply to the petition. Noteworthy though was the submission by the respondent that, since he has already paid the appellant shillings 70, 000/ as compensation, apparently, in the criminal matter, this claim to him, is vexing. The grounds of appeal do not address the dedsion of the. appellate court. I will not therefore reproduce them. However, there is one ground worth of corsideration of this court on appeal. That is, whether the decision of the appellate court was contradictory.. The appellate court decided the matter as follows. "As afready expressly elaborated, by the appellant, this is the damage improperly evaluated by the agricultural officer but here comes about the genuity (sic) of the document, In fact, the document is not only improperly admitted, as a copy but also not mentioned the name stamp of the VEO and signature. 3 Also, without any other witnesses and neither of the parties called summoned to testify on behaff of the I appellant in support of the report This an enough I reason for this court to declare the anthencity ('sic) of the document and enough to quash the decision and judgment of the lower court. Court - The lower court proceedings and judgment is quashed. Hence dismissed

the appeal -Every party to bear own costs -Right of appeal has been explained to the parties" Basically, this is the substance of the decision of the appellate court. The appellant complains that it is con.tradictory. Surely, if one goes to the reasons for the decision and the decision itself, the recourse to quash proceedings and the judgment leaves nothing to deal with by way of an appeal. Quashing of proceedings is a function of revision. Once proceedings are quashed, there remains nothing to deal with on appeal. To this extent the appeal has merit. After all the irregular 11 /7 11 K admission of the valuation report could not be the reasons for quashing the whole proceedings of the case. The impugned document, could as well be expunged from the record and the remaining proceedings could be spared. Therefore, the purported revision order is hereby revised. The proceedings and Judgment of the trial court are hereby restored. The contradiction apart, the holding of the appellate court that the valuation report was wrongly admitted is valid. The valuation report which was admitted and marked exhibit 'JC 2" is indeed a photocopy. The admission of the copy of the report is an affront to the mandatory provisions of regulation ii Of the Magistrates Courts (Rules of Evidence in Primary Courts) Regulations GN 22 of 1964 as amended by GN 66 of 1971. The regulation states as

follows. The original document must always be produced. Exceptions 5 ( .1 (a) A copy of the original document may be proved if the original has been lost or destroyed or if it is in the hands of the opposing party and he will not produce it, but (unless paragraph b of this exception applies) oral evidence must be given that it is true copy of the original (b). A copy, of the court or official document may be proved if it contains a certificate, signed by a registrar, magistrate or official who has the original document that is a true copy. (2). Where documentary evidence is given, oral evidence may be given to connect it with the case. The valuation report was received in evidence casually by the trial court, without accounting for the original. Going by the proceedings, the copy was received under the said regulation 11 (1) and (2). There is no indication that it was specifically received under regulation 11(1) (b) of the Regulations as the procedure would require, and that the requirements of.the sub regulation were complied with. 6 (I /7 The copy would only be admissible as a copy, if the same was certified by the officer having the custody of the original as a true copy of the original, and if it were shown that the respondent had the original and evidence was led to show that it was a true copy of the original. The casual admission of the copy as was done by the trial

court in the present case was irregular and the document so admitted, cannot be allowed to remain in the record. The decision of the court to expunge the valuation report was therefore warranted, and cannot be impugned. Without the valuation report, there is no other evidence to quantify the damage. As a matter of principle, special damages must be strictly proved. in the present case the only evidence was the impugned valuation report. In the absence of the report there is no other evidence to justify any other compensation, additional or otherwise. 7 / Under regulation 7 of the nagistrates Courts Regulations, it is directed that in deciding cases Primary Courts must be confined to the, facts which are proved in the case and the matters deemed known or which may presumed under regulation 3 and 4. The court must not take into account any fact it hears out of the court except facts it learnt in the presence of the parties. Furthermore under regulation 6 the standard of proof in civil cases is that the weight of the evidence on the one party must be greater than the other in order for that party to win the case. Regulation I of the regulatiOns directs that where a person makes a complaint against another in a civil case, he must prove all the facts necessary to establish the claim, unless the other party (that is the defendant) admits the claim. In the present case the respondent

was duly convicted of the offence of crop destructiOn. That was not a triable issue /\\J / anymore. The issue was the quantum of damages. The valuation report which would establish the quantum has been rightly expunged from record. As suc.h, the court below was enjoined to look at the evidence on the record and not lamentations of the economic situation on the street, which situation was not part of the record. That could not form the basis for establishing the claim by the appellant. The ground of appeal in this respect is devoid of any merit, it is therefore dismissed. From the foregoing, and on the evidence on the record, the appe& clearly lacks merit. It is hereby dismissed with costs. Dated at Mwanza this day of September, 2017 G. Matupa C (:f w