CIVIL APPEAL FRANCIS NYAMASIMA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY

AT MUSOMA CIVIL APPEAL NO. 000022546 OF 2024 REFERENCE NO. 202409101000022546 {Arising from the decision of the District Court ofBunda at Bunda in Smail claim No. 000004227of2024)

BETWEEN FRANCIS MANYASIMA........................................................... APPELLANT

VERSUS FREDERICK MASANJA........................................................ RESPONDENT

JUDGMENT 18th & 26th November, 2024 M. L, KOMBA, J, The appellant FREDERICK MASANJA filed a small claim suit in Bunda District Court claiming for compensation on destruction caused by the above-named appellant. From the claim form, respondent adduced that he started agriculture investment and opted to deal with mango trees. He planted 180 mango trees in an area covered 18 footsteps with expectation to harvesting and sell fruits but that expectation disappeared after the said trees were destroyed by the appellant hence civil claim. The trial court find there was investment in mango trees which was then destroyed and award Page 1 of 9 payment of TZS 3,270,000/ as special damages and TZS 6,730,000 as general damages and costs of the suit. Appellant was not amused by the trial court decision hence this appeal with four grounds that; 1. That, the Trial Magistrate erred in law to determine the case in the respondent's favour white the issue of ownership of landed property was not yet resolved.

2. That, the Trial Magistrate grossly erred in law for awarding the respondent damages to the tune of Tshs 10,000,000/= basing on oral accounts from the respondent as an agriculture expert white no valuation report was tendered to warrant the existence of Mango Tree investment as well as the destruction of the same.

3. That, die Trial Magistrate grossly erred in law and fact to award the respondent the amount of Tshs 10,000,000/= while the respondent failed to prove his claims to the required standard of the law.

4. That, the Trial Magistrate grossly erred in both law and fact to disregard the appellants' evidence and his witnesses and arrived to a wrongjudgment. When the appeal was ready for hearing Mr. Godfrey Muroba represented appellant while Mr. Emmanuel Mng'arwe appeared for respondent, both are advocates. Page 2 of 9 It was Mr. Muroba who starts to argue the appeal on the 1st ground that the issue of ownership of land was not yet solved as the respondent's base of his claim was on ownership of land. Sale agreement and mediation certificate from Kabasa ward tribunal is not judgment which prove ownership, he complained. It was his submission that ownership of land has to be determined by District Land and Housing Tribunal and therefore, the trial court errored to rule that respondent owned land and make investment in it. On second ground counsel Muroba complained on the damage awarded to the tune of TZS10,000,000/ as there was no proof as required under section 110 of the Evidence Act, Cap 6. He lamented that the respondent was supposed to prove his claim but he did not, he was supposed to tender valuation report from Agriculture office to prove presence of trees and value of the said trees, to the contrary he submitted that he only gave oral testimony. Counsel went on arguing the 3rd ground that the offence was not proved and the amount awarded has no justification. Analysing

section 110 of Cap 6 he said any person who believed his right was infringed has to prove and Page 3 of 9 he insisted that respondent did not prove that he invested on the disputed land and witness had no enough evidence to prove what was alleged. On the 4th ground it was his submission that the testimony of appellant was not considered. Appellant testified that there were no mango trees and that land belonged to him as defence witnesses during trial he said they have never received any complaints by respondent and have never seen mango trees on the disputed land. Some of witnesses were leaders. Further it was testified that there was no yowe (alarm) when appellant destroyed respondent trees by using machine. If there was such destruction, he insisted respondent was supposed to report or make an alarm so that leaders could be aware of the problem. He prayed the appeal to be found with merit and prayed for cost of the case. Resisting the appeal Mr. Mg'arwe said that there was no land dispute among the two when the matter was in court. Referring page 3 of judgment he submitted that there was no land dispute even appellant witness testified so as it was solved. On the second ground he submitted that there was no need of valuation report to prove that there were mango trees at the disputed land, explanation by respondent as agriculture officer Page 4 of 9 was enough as he testified

how he prepared his land and plant the mangoes. He engages a guard to oversee the farm. About damages which was the third ground, it was his submission that respondent and other witnesses prove the destruction and respondent prove in court his effort and costs incurred in investment. However, he submitted that the trial court allowed minimum amount of TZS. 3,270,000/ only as special damages and the rest is general damages which is discretion of the court. To him, the general damages allowed was reasonable as respondent claimed for TZS 50,000,000/=. He went on submitting that appellant defence was considered as featured at page 3 of judgment and that is where it was ruled that there was no dispute among the two. He prayed this court to dismiss the appeal with costs. When given time for rejoinder, Mr. Muroba insisted that land dispute was not solved as per law, there was supposed to be evaluation report to prove destruction and appellant defence was not considered as the appellant informed the trial court that he intends to make a follow up to District Land and Housing Tribunal (DLHT) to know his status. He then reiterates his prayers in chief Page 5 of 9 Having carefully considered the submission from both parties, I will now embark on determination of the grounds of appeal fronted by the appellant. This being a first appeal, I will preface my determination with the position of

the law as to the duty of the first appellate court as held in The Registered Trustees of Joy in The Harvest vs Hamza K. Sungura, Civil Appeal No. 149 of 2017, thus; it is part of our jurisprudence that a first appellate court is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision. It is also the final court of facts as was elaborated in Firmon Mlowe vs Republic (Criminal Appeal 504 of 2020) [2022] TZCA 694. Further it has to be noted that appeal is rooted from the petition filed by appellant and appellate court has to address all grounds of appeal filed. See Firmon Mlowe vs Republic (Criminal Appeal 504 of 2020) [2022] TZCA 694. I shall combine all the grounds of appeal as rooted in second and third grounds. I find the key issue is award on damages made by the trial court. The trial court awarded special damages to the tune of TZS 3,270,000/ and general damages of TZS 6,730,000/ for disturbing investment. The law Page 6 of 9 under section 3(2)(b) and 110 of 'the Evidence Act, is certain that, the standard of proof in Civil Cases is on the balance of probabilities which simply means that the court will sustain such evidence which is more credible than that of the other party on a particular fact to be proved. This is backed up by the Court in M & M Food Processor Company Limited vs CRDB Bank

Limited & 2 Others, Civil Appeal No. 273 of 2020 where it held thus; "It is again trite that the burden ofproof never shifts to the adverse party until the party on whom onus lies discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party's case. Respondent who claimed the planted mango trees were uprooted, was supposed to prove that actually the farm had mango trees. Four defence witnesses said there was no mango trees but other crops. Respondent complained and testified orally that he planted 180 mango trees. To prove he planted trees which were from different region it was expected respondent to tender, during trial, evidences of receipt where he bought, receipt on transportation and cost incurred in upkeeping of the said trees. Counsel for appellant complained that there was no report from agriculture officer to justify presence of trees and its value regardless of other defence Page 7 of 9 by the appellant. On the issue of report, counsel for respondent Mr. Mng'arwe submitted that there was no need of agriculture officer report because respondent is agricultural Officer. With due respect, the country which is led by rule of law adhere to the principle of natural justice believe in 'nemo judex in causa sz/a'that no man can be a judge of his own case. The farm or rather trees were supposed to be valued and the report prepared

on how many mango trees was in the farm and how many was destructed and the size of the tree and its costs just as submitted by Mr. Muroba. It is the position of this court that proving that there were 180 mango trees and that costs TZS 3,270,000/ was not done as per law. Further, the trial magistrate award special damages to the tune of TZS 3,270,000/. I have repeatedly read trial court proceedings and found no evidence was tendered on specific cost which respondent claimed. It is settled that special damages has to be specifically and strictly proved. See Simba Motors Ltd vs Joh Achelis & Sohne Gmbh & Another (Civil Appeal 72 of 2020) [2022] TZCA 311 (24 May 2022) and Anthony Ngoo & Another vs Kitinda Kimaro (Civil Appeal No. 25 of 2014) [2015] TZCA 269 (25 February 2015). Failure to tender receipt or report to that effect I find cost incurred by the respondent was not proved and the claim too Page 8 of 9 cannot be said was proved. At this juncture, I join hand with appellant and his witnesses that there were no mango trees on the disputed land, village chairman and police as testified by respondent were not aware of the said destruction. So far as claims was not proved, there cannot be general damages for disturbing investment which was not started. In the upshot, I find the appeal has merit, the claim by respondent was not proved to the balance of probability and there were no specific damages claimed and evidence to warrant an award. For that reason, the appeal is allowed, the award pronounced by the trial court is quashed. The appellant is entitled to his costs. It is so ordered. Dated at Musoma this 26th Day of November, 2024 Page 9 of 9