19720323 TZHC Mwanza2

In the High Court of Tanzania at Mwanza (nc) Civil Appa1 1o. 79 of 1971 (Froei the decision oj- bie District Court of N. Itara at Taricie in CivilAppa1 No. 174 of 1970) P1 ,...Appellant I L V3U'3 . TtWGI Kisanda 3., - Th app11nt Iymanche Tyonyi was a defendant to a suit in the pimaryoot' at Sirati in whicn the rcspondcntas 0 1irning shs. 3,000/- in rosi cot of damage oauod to his shamba and, the cropo growing on it. The primary court awarddd the clam in part a L amnst bni. The respondent wa not satisfied to recover part only of hm claim and so he appca.cd to the dmstrmct court Th' ditrmct court uph id the Lecis ion of the rmmaiy court. The appellant row appeals - to this oourt against that deoizioh and the respondot has also Isosiab1ished by evidence that a isp.utô occurod b ecause : the eiss-appe11ant in the othüc of cultivating his land crossed the boundary and cultivated a portion of the appellant's land. The matter was referred to the primary court which settled it by awarding one portion of the land so cultivated to the appellant and the other to the cross-appellant. Both courts below found that there was no evidence to show that the appellant destroyed any crops on the land of the cross-appcllant, and that Iinding is amply justified. The primary court however, went on to award compensation to the cross-appellant in the sum of shs. 200/- in respect of that portion which was given to the appellant after its cultivation by the cross-appellant. The particulars of the award were as fo1low- Clearing land - 11 14 40/- 2i Cultiation - 42/- Levelling the land - 35/— Planting 3P/:- 5o Seedling 8/7 6 eoding - 45/- Total 200/" The learned district magistrate found that there was evidence to how tht the crossappo1lant cleared the land and cultivated it, and this finding is fully supported by the evidence. This therefore would justify items 1,2, end 3 of the award. It appears however, that there wao•videncc to justify the remaining items of the award, namely, the cost of planting, the ôost of buying seedling and the oost of wooding. The appellant testified that when the matter was adjudicated upon by the primary court and his land ivon back to him the cross-appellant -'2-'' had only coed and cultivated the land but had not planted - .:atbjno' Ia. fully supported,. by his witness (D2) who dbhat*hi as a court assessor ct..the time and that when the appellant complained to the court alout this land .p, ppp, p cd • jC matter by, ,pporticnin the disputed. land between tii cppcllant an1 the cr'o'sappcllant He went on to sar thai.the.Ind was cultivated but nothing was planted on it at the time of apportionIn it Both courts t rcjactd this cvidonca,an jndcoc.1 there is nothinc;: on the record t6"suost that this evidence should be TojGctcdi hcccpting that evidence thorcforc there would be no b .frpwordin to the crossappellant any compensation in jcô't"lof planting the shamba; bu.yin seeds .' and we.edj•'hc The ouit respect of thco; was hse 83/-. I thrciatt thiA1that tu total award ofsb.s. .Q/- siiould b uuccdb' t.is sdm. tocordiiily th oross-appcla'nt shcLild recover sh, ii/- only. nfl the result the appcllai tts appeal is allowed in dart to the etet that iie pays shs. 117/- oa1y as corn pcsatioe,ii and the cros-appol,ant'. appl is dirnisscd.with costs. .I.t.:.is ' f.urthcr ,orcrcd that oh artic..s bar . e.qualy. the costs of the appeal wiici have .cen ncar1e. by the appcllan±e R. Ti. 1Ciana 23rd March, 1972, . Jdgc. ':•''' . .. . . . . . '.......... . S.L .1 • •: _\ h. . ...... .•.- , 1 4_ • . . Z.' , . .; .ei'.: ' .ei. !. '. ." :. ... •..;.e; -r .rzt; v-tei'