19851115 TZHC Mbeya

(From the decision of the District Court of Rungwe District at Tukuyu in Ciri1 Case "No.14 of 197 Before: A.R. Maneto, Resident Magistrate) .iL.EDWARD YaVAKYANDW IKE . 0 e , .. APPEL1T . . (Oiigina1Plair±iff) versus LUPOLE MWI?OPO. 00rSPOfl)ENT (orginaI Defendant) M1OSo. J The respundent sued sucoessfulJj thc a,ppe1Jnt for damages arising from a fracuced arm he had sfrered when he • was as.sulted by the appellant in 197. ..he .tria1district court aiarctd hiri shi11ins 2000-= plus costs, The appeJiant ft6s not believe that he shiiild have been made liable and 'iisiders that 'iii any eae the amount of damages awarded vas excessive ic aa8 tiisrefore askea thi' coirt to iiervene and psot hL. trial co irt juagi ent. "in. the nigh. of. 19/4/9.77 at aboib whQn.,it was aparoitlJ drh iliL respondent who was in the co.pipany of one Asile hiJciIwa ware walking towarus nno, whea they heád'some one th,,'frdnto'f tern coughing,• They commented that it might' ba,ghdst •aft :'t'hoy faled...to mace the person speak up. Asai1e vent in thc arcctin of his home and the "reo'ndent was sequeitly coifronted by the appellant who demanded to know hy h ws being referred to as a inost. That led. 'to a scuffle nd' .r:pspondent suffered frb'red arm and the appellant, a spraned., inex finger. On:e Anyaxnbilile hwai umba (2W3'):: camo to. scuno . He said he saw the - a'epeilant chasing the resondont.. and

when. he got to thei tio respoadcn was 1y1nr, n th c,r iid. By then no had already substairicd the fracture of his right urm. ./2 7 Mg • •i • . ,, , - He could not 1movwhator who caused the broub1e : The respondent c13.rcd 1tha the aepeflent ad chase him and then assu1ted 121 ith fists ad witha piece of a bamboo wood causiilg hrn th tracture act that there was no 1awuL cause for1hc assauit. The dppellant on the other hand said by the respondent . together with other .joop10 .and.that actiig in self—defence he pushed the repondont who fell down and fractured his arm. A .; :; 7 The apeilnt was . jirt prosecuted for assault and was eorwi.etod and fined shillings 400/=. H-was also ord-ed Q..pay bheondent com13ensaton in the sum of shillings 300/. The rsoondont vaa not, however 9 satisfied with the amount of co1Lpoasct1on na that lcd im to -Lie the ci\T1l suit for damages in tl:e District court. .: The question of. who.vi.at. nd toefore Uable to the other de23tlded urcy on 'ooe, si, t bc-hove. The trial court b;hici3d tho.. r- oojidcnt an L aablo to fault 1 him. He h.erd .tio, po.:s. an *oir rotizc. .winesaes .and vas ina bet cr..,paition .th2n :, ona-ppe.al, to assos .tfl ccdIb1LT of th nci. their respective witnose. I t 1_,.enforc ) 3p1d t lW€: court judet in so far as it found the a:.: i,.at. to have. e.on the one at fault and consoquehtlr liable for dames. On the questl3n o the

quantum of aamaes I think there '1 is some rncrib. TI: rec-nJ3nt coulc nob prove Ithat he lost sh.2,000/= in oarnins fOr he 2 months he w Hôwevr considering that had h ëi vor1i±ig for wgs h he would have iot hs.6OO/por rnôih :(th -tion minimi.im vage) his loss would have arnoncd to sbngs 15OO/=,f for the b1,o and a half months he could nOt works The .......................................................... damages are therofo'e reducei fxom shillings '2,OOO/ .- :. to . shs.l,500/=. Since the respondent said hc has already spent sh'. 1901= iì .a1tdidui hë HihCourt ''this app1 - and will have t spcnd notherforiis fare b& home tod.ay, his total costd (ircludin' sh.98/= awarded by the trial cout) • . sIould bo iii.ihings 338/: - "Mit .Y.r::/: - .... . . - - • • • • f. J 4. . partially succoedod on the quantum of daaes, I deduct shs.50/= from the zspondents ontitlemont for costs1 He will therefore.be paid costs in the sum of shs.288/= only, which will bring the appellant's total liability to the respondent to shillings 1,788/=. J. irroo At Mbeya JUDGE lth November, 1985 JAM/J1TM I lima0