ESTHER PHILIPO LUCHAGULA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA PC CIVIL APPEAL NO. 17730 of 2024 (Arising from the Judgement of the District Court of Magu in Civil Appeal No. 5519 of 2024; Originating from Civil Case No. 01 of 2024 of the Urban Primary Court of Magu) ESTHER PHILIPO LUCHAGULA……..……………..……..………….……..APPELLANT VERSUS NAOMI MIKWANGA…………………………………………………………RESPONDENT JUDGMENT 07th October & 18th October 2024. Kilekamajenga, J. The appellant filed a civil claim in the Urban Primary Court of Magu seeking compensation of Tshs. 127,050/= occasioned by the respondent’s cows sneaking out from the kraal at night and consuming the appellant’s crops. During the trial, the appellant informed the court that she spotted cows through her window on the night of 12th January 2024. As it was at night, she awoke her neighbour for assistance. She later realised that the cows belonged to her neighbour (the respondent) and hence drove towards the respondent’s family. The respondent, being an old woman did not wake up that night but the children woke up and received the cows that night and the appellant left. On the next morning, the appellant found the hamlet chairman for an amicable settlement of the dispute but the respondent was not willing. The agricultural officer gauged the extent of destruction and valued the crops at Tshs. 127,050/= (exhibit P1). PW2 further confirmed to have been awaken by the appellant on the night of 12th January 2024 and they drove the cows 1 to the respondent’s house. On the next day, the appellant followed the necessary procedure including finding the village leaders for resolution of the dispute. PW3 was a teacher who was also awakened by the appellant for assistance. He also confirmed that, three cows were in the appellant’s farm on the night of 12 th January 2024 before they were scared away towards the respondent’s home. PW4 was phoned by the appellant at night complaining about the destruction of the crops. PW4 advised the appellant to wake up the neighbours for assistance. In the defence, the respondent simply denied the claim alleging that her cows did not sneak out of the kraal on that night. Based on the above evidence, the trial court ordered the respondent to compensate the appellant an amount of Tshs. 127,050/=. Irked with the decision the respondent appealed to the District Court which set aside the decision of the trial court. The appellant is now before this court seeking justice. The appellant is armed with five grounds coached thus: 1. That the Honourable Appellate District Court Senior Resident Magistrate erred in law and fact in quashing and setting aside the sound judgment of the Urban Primary Court. 2. That the Appellate District Court erred in law and fact when failed to take into consideration the evidence of the appellant. 3. That the appellate District Court erred both in law and fact when failed to take into consideration that the evidence of PW1, PW2, PW3 and PW4 was corroborated by the Agricultural Officer’s report (exhibit P1). 4. That the appellate District Court erred in law and fact when failed to take into consideration that the appellant’s evidence proved the claim against the respondent on the balance of probability. 5. That the appellate District Court erred both in law and fact when failed to take into consideration that it was unnecessary for the appellant to summon the Agricultural 2 Officer as the report was admitted without any objection and neither was that issue raised by the respondent in his petition of appeal. When the appeal came for hearing, the appellant appeared in person. She informed the court that her farm is located a few meters from the respondent. On 12th January 2024 at night hours, she heard the noises from the farm; she opened the farm and saw cows in the farm. She was afraid of coming out of the house hence phoned her mother and narrated the incident. Her mother advised the appellant to wake neighbours for assistance. With the assistance of neighbours, she took the cows to the respondent. On the next day, she went to the hamlet chairman to find a way to resolve the dispute. The appellant was willing to receive Tshs. 100,000/= as compensation but the respondent refused. The hamlet chairman referred the appellant to the Village Executive Officer and finally reached the Ward Executive Officer. Finally, the agricultural officer evaluated the extent of the destruction and referred her to the Primary Court. In response, the respondent’s advocate, Mr. Demetrius Mtete supported the decision of the District Court arguing that there was a discrepancy on the time of the occurrence of the incident. The appellant alleged that the cows were in the farm at midnight whereas PW2 said it was at 3 am. The discrepancy shed doubt on whether the incident happened. When submitting on the third and fifth grounds, the counsel argued that the District Court was right in evaluating the evidence of PW1, PW2, PW3 and PW4 because the same evidence had discrepancies. He further argued that the evaluation was done by the agricultural officer who was not summoned to court. Hence, it was difficult to know if the 3 destruction of the crops was up to that cost. On the fourth ground, the counsel was of the view that the appellant’s evidence failed to prove the case on the balance of probabilities. When rejoining, the appellant simply insisted that the respondent was around during the evaluation. I have carefully considered the submission from the parties and the grounds of appeal advanced by the appellant. The grounds may be marshalled into two categories, those that challenge the weak analysis of the evidence and whether or not the claim against the respondent was proved to the required standard. This being the second appellant court and as long as the first appellant court failed to correctly analyse the evidence in its three-page judgment, I feel indebted to revisit the evidence adduced during the trial. As already hinted above, at midnight, the appellant saw the respondent’s cows in her farm. At that night, the appellant did not want to be the only witness for the incident; she woke up other two neighbours for assistance. The appellant, PW2 and PW3 drove three cows from the appellant’s farm to the house of the respondent. The respondent, being an old woman, did not come out after the knock of the door. However, the respondent’s children came out and received the cows. Reasonably, the appellant could not have gone around the village looking for village leaders to resolve the dispute at that night. Therefore, the appellant went back and spent the night until the next morning. On the next day, the appellant looked for the hamlet chairman. Efforts to amicably settle the dispute did not yield any meaningful results. The appellant was willing to receive a 4 compensation of Tshs. 100,000/= for her crops but the respondent refused. The agricultural officer was invited to establish the extent of destruction caused by the respondent’s cows. According to the report (exhibit P1), the three cows caused a loss of Tshs. 127,050/= to the appellant. When the respondent preferred an appeal in the District Court, the decision of the trial court was reversed for two reasons. First, the District Court was of the view that there was a discrepancy in the appellant’s evidence. The appellant testified to having seen the cows at midnight whereas PW2 testified to have been awakened at 3 pm to assist the appellant in driving away the cows. In the eyes of the District Court, the discrepancy was fatal. With respect, I am saddened by the simplification taken by the District Court on this matter. In my view, whether the cows were seen on the appellant's farm at midnight or 3 pm did not go into the root of the case. No witness could have been keen enough to note the exact time when the cows were in the farm that night. It was completely wrong and a grave injustice for the District Court to jettison the good evidence explaining the incident and confirm the decision of the discrepancy of time. Second, the District Court reasoned that the Agricultural Officer was not summoned to testify and tender the evaluation report. I am moved to revisit the law on who can tender the exhibit. The law is already settled, however. The Court of Appeal handled a similar scenario in the case of DPP v. Mirzai Pirbakhshi @ hadji and 4 Others, Criminal Appeal No. 493 of 2016 where it stated that: ‘A person who at one point in time possesses anything, a subject matter of trial, as we said in Kristina Case is not only competent witness to testify but he could 5 also tender the same. It is our view that it is not the law that it must always be tendered by a custodian as initially contended by Mr. Johnson. The test for tendering the exhibit therefore is whether the witness has the knowledge and the possessed the thing in question at some point in time, albeit shortly. So, a possessor or a custodian or an actual owner or alike are legally capable of tendering the intended exhibits in question provided he has the knowledge of the thing in question.’ It is evident, that the appellant possessed the report after the Agricultural Officer evaluated the loss caused by the respondent’s cows. In line with the above principle of the law, the appellant was not only a competent witness to testify but was in the passion to tender the report even in the absence of the Agricultural Officer. In my view, the District Court’s finding on this point was a serious misdirection. In conclusion, it was wrong for the District Court to quash and set aside the decision of the Primary Court. The evidence at hand was sufficient to sustain the claim against the respondent. The evidence of PW1, PW2, PW3 and PW4 proved the claim on the balance of probability as required by the law. The claim of Tshs. 127,050/= which was coupled with exhibit P1 was proved against the respondent. The same exhibit could not have been dismissed on the mere reason that it was tendered by the appellant and in the absence of the Agricultural Officer. Certainly, the appellant was a competent witness to tender exhibit P1 which was in her possession. I find merit in the appeal and allow it. I set aside the decision of the District Court and uphold the decision of the Primary Court. The respondent should pay the compensation of Tshs. 127,050/= to the appellant. I further 6 order the respondent to pay the costs incurred by the appellant from the trial court to this level. Order accordingly. DATED at Mwanza this 18th Day of October 2024. Ntemi N. Kilekamajenga JUDGE 18/10/2024 Court: The judgment delivered this 18th October 2024 in the presence of the appellant but in the absence of the respondent. Right of appeal explained to the parties. Ntemi N. Kilekamajenga. JUDGE 18/10/2024 7 8