John Kasomi

T-r-.d IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MOROGORO AT MOROGORO CIVIL APPEAL NO. 30 OF 2023 [Appeal from the Decision of the District [Appeal from the Decision of the District Court of Kilombero at Ifakara in Originating from the Judgement and decree of Mlimba Primary Court in Civil Case No. 8 of 2018] BETWEEN JOHN KASOMI APPELLANT VERSUS BOSCO CLARENCE KAMGUNA RESPONDENT JUDGMENT MRUMA,J This is an appeal from the decision of the District Court of Kilombero at Ifakara in Civil Appeal No. 9 of 2021, which arose from the decision of Mlimba Primary Court in Civil Case No. 8 of 2018. In that case the Respondent Bosco Clarence Kamguna had sued the Appellant John Kasomi for payment of compensation for his rice paddy destroyed by the Appellant's herds of cattle. After hearing both sides the trial court awarded the present Respondent Shillings 1,800,000/= (Say One Million and Eight Hundred Thousand only) being compensation for his destroyed crops. The Appellant unsuccessfully appealed to the District Court. In its decision the District appellate Court found that on the evidence on record the Respondent's evidence was heavier than the evidence of the Appellant and found no reason to fault the trial court's judgment and decree. The Appellant was not amused with that decision and has appealed to this court on the following grounds 1. That The Appellate court erred in law and facts to hold that the primary court had jurisdiction to entertain the suit while the matter was purely criminal in nature as it arises from an offence of malicious damage to property which was never dealt with under the Penal Code. 2. That, the appellate court erred in law and to ignore the fact that the Respondent failed to prove the destruction of his paddy by failing to tender in court neither a valuation report nor call a valuation officer,as his key witness. 3. That, the appellate court erred in law and in fact to hold that the appellant's cows were found eating the respondent's paddy in absence of any evidence to such effect. 4. That, the appellate court erred in law to hold that the matter filed in the trial court was civil in nature and not comprehending the fact that the appellant was never charged nor convicted of an offence of malicious damage to property to attract a suit for compensation against him. 5. That, the appellate court failed to critically analyse, asses and scrutinise the evidence adduced by the parties and hence forth came up with a wrong decision rendering a miscarriage of justice to the appellant. On those grounds, the Appellant prayed his appeal to be allowed with costs. The Respondent opposed the appeal. At the hearing of this appeal the Appellant was represented by Mr. Funuki Sikujua, learned Advocate while the Respondent appeared in person. The appeal was argued orally. Submitting in support of the first ground, counsel for the Appellant has submitted that the trial court failed to evaluate the evidence adduced before it in order to arrive into a just and fair decision of the matter. The learned counsel contended that it is the requirement of the law that he who alleges must prove therefore the Respondent had to prove his claims, but in the present case the Respondent did no prove his claims. He said that in his evidence at the trial, the Respondent simply listed crops alleged to be destroyed and mentioned its value as Shillings 2,830,000/=including other costs such as Shillings 800,000/= for hiring 8 acres of land e.t.c without any genuine evidence to support his allegations. He contended that the Respondent never produced any lease agreement to prove that he leased land. He said that PW2 and PW4 from whom the Respondent claimed to have leased land did not produce any evidence to that effect. According to the learned counsel, most of the Respondent's claims were not substantiated. The learned counsel cited the case of Msolele General Agencies Vs African Inland Church of Tanzania (1994) TLR 192), where it was held inter alia that:- "Allegations againsta RespondentIs not conclusive proofofthe matters alleged and because the Respondent didn't prove his claims It was wrong for him to enterjudgmentIn his favour"; and contended that the Respondent failed to discharge the burden of proving what he alleged. Submitting in support of the third ground, the learned counsel contended that the trial court erred in believing that the cattle that were found in the Respondent's farm belonged to the Appellant while there was no evidence to that effect. He said that it was wrong for trial court to rely on the photographs taken by PW3 while there was no evidence that the photographs were taken from the Respondent's farm. He said that both courts erred in law in finding that the cattle in the picture belonged to the Appellant and that the pictures were taken from the Respondent's farm. He said that the evidence does not show the boundaries of the Respondent's farm and how was possible it for Appellant's cattle to enter into the Respondent's farm without passing through nearby farms. Submitting on support of the second ground which is to the effect that there was no proof of destruction of a paddy farm or any crops in the filed, the learned counsel contended that in order to prove destruction there must be a valuation report showing the property or thing alleged to be destroyed. He said that in the circumstances of this case there was a possibility that the Respondent's farm was destructed by buffalos and.not cattle due to the facts that in that area there are wild anirnals among others, buffalos herds which resembles as herds of cattle. He said that in absence of a valuation report and an expert opinion regarding the value of destroyed crops the Respondent's claims are in great doubt. He cited the case of Hemedi Said Versus Mohammed Mbilu.(1994) TLR 11, where the court dealt with failure to call material witnesses and submitted that there were some material witnesses who were not called to testify for the Respondent. Arguing in support of the first and fourth grounds, Mr. Funuki submitted that the trial court had no jurisdiction to try the case because the matter presented to the court had criminal element in its nature because the Respondent was claiming compensation for malicious damage to property. According to the learned counsel the Respondent was ought to have instituted a criminal case first before resorting to a civil case. He said that the first court to deal with the matter ought to have been a criminal court and because that was not done the lower court erred in entertaining this matter. On those grounds counsel for the Appellant prayed for the Appeal to be allowed with costs. Responding to the submission of the counsel for the Appellant, the Respondent had nothing much to say. He simply stated that courts did not err, because he lodged his claims and gave evidence in support of the same and that after going through the evidence the trial court agreed with him and gave judgment in his favour. This is a second appeal. The duty of a second appellate court is to examine whether the principles which a first appellate court ought to have applied were properly applied. If the court finds that it did not the second appellate court's duty is to proceed and apply the said principle [see the Ugandan Case of John Kateero Sentogo Vs Peterson Sozi, Civil Appeal No. 173 of 2012]. In other words the second appeal court has no express duty to re-evaluate the factual issue of the case. That is the duty of the first appellate. That duty requires the first appellate court to re-evaluate the evidence given during the.trial and give its own conclusion of the matter.In such circumstances therefore, the second appellate court cannot disturb the concurrent findings of facts by the lower courts unless there is misdirection of the law. This was stated in the case of Ludovick Sebastian vs. Republic, Criminal Appeal No. 318 of 2007 (CAT - Tabora registry) page 5 where the Court of Appeal held that:- It is trite iaw that a second appeiiate court shouid not easiiy disturb the concurrentfindings offactby the iower courts uniess itisshown thatthere hasbeen misapprehension ofthe evidence; miscarriage ofjustice or vioiation ofsome principies ofiaw or procedure. Based on the above legal principle the question for determination is whether or not the first appellate court properly re-evaluated the evidence adduced during the trial before agreeing with the finding and the decision reached by the trial court. Starting with the first ground, the courts below are faulted that the matter instituted before the trial court was purely a criminal matter therefore the trial court was wrong to deal with it as a civil claim. Let me start by saying that there is no law which requires that where a matter can both criminal and/or civil in nature, the criminal element of matter must be determined first, to the contrary the offence of criminal trespass which entails entering into or upon a property in possession of another person with intent to commit an offence and the offence of malicious damages to property where the property involved is crops cannot stand where ownership of the land or property is in dispute [see Sylivery Nkangaa Vs Raphael Alberto 1992] TLR 110 and also the case of Scolastica Paulo Vs R(1984) TLR 187 where the.court held that:- 'Tc Constitute the offence ofMalicious damagesto property there must be evidence ofdamage or destruction of the property and the ownership ofthe property" In other words for the offence of criminal trespass or malicious damage to property to stand, the question as to ownership of the land which is a civil dispute or case must be determined first and can be seen from the two decisions cited above it is now settled that proof of ownership is key to the offences of criminal trespass and malicious damage to property. In the present case the ownership of the land was not an issue therefore it was squarely upon the Respondent to decide whether to institute a civil suit or a criminal matter. In both causes the trial court had jurisdiction to entertain. Accordingly, I find that the first ground has no merits and I dismiss it. As regards the second, third and fourth grounds the Respondents faults the two courts below that they entered judgment in favour of the Respondent despite the fact that he failed to prove destruction of his rice paddy and the value of the destroyed crops. As correctly submitted by the counsel for the Appellant it is trite law that the onus of proving claims in civil cases lies on a party who alleges to have ,been wronged. This legal position is embodied in the provisions section 110 (1) and (2) of the Law Evidence Act[Gap 6 R.E.2019]. This burden of proof does not shift unless stated by the law to that effect. That was so stated in the case of Pauiina Samson Ndawavya vs. Thefesia Thomas Madaha, Civil Appeal No 45 of 2017 [unreported] where the Court of Appeal held that:- "The burden ofproving a factreston the party who substantially asserts the affirmative ofthe issue and not upon the party who denies it; for negative is usually incapable of proof. It is an ancientruie founded on consideration ofgoodsense andshould not be depaited from without strong reason that until such burden is discharged, the other partyis notrequired to be called upon to proye his case". In so doing, the court has to examine as to whether the person upon whom the burden lies has been able to discharge that burden. Until court arrives at such conclusion, it cannot proceed on the basis of weakness of the other party. In the case at hand it was the therefore the duty of the Respondent to prove that herds of cattle belonging to the Appellant destroyed his rice pad. The standard of proof is on the balance of probability. In order to discharge that burden the Respondent called Adrian Mikale Kanngina (PW2) and Augustino Masuda (PW3) who gave evidence to the effect that it was the Appellant's herds of cattle that entered into 10 the Respondent's rice paddy and did some destructions. In his evidence PW2 testified that he saw the Appellant's cattle while grazing on the Respondent's rice paddy. The Appellant did not challenge this evidence. He did not ask PW2 any question in cross- examination. Like PW2, Augustine Masuda (PW3) gave evidence to the effect.that he witnessed when the Appellant's herds vyere grazing over the Respondent's rice paddy. According to PW3 he pleaded with the Appellant to drive out his cattle from the Respondent's farm but the Appellant and his cowboy refused while threatening to harm him with a. bow.. Once again the Appellant did not ask PW3 any question in cross-examination to challenge.what PW3 had stated. Thus from the unchallenged evidence on record the Respondent was able to prove that the Appellant's cattle entered into his rice paddy and did destroy,the rice thereon. The question that remain unanswered is on the quantum payable as compensation. The Respondent claimed Shillings 2,660,000/= as compensation for the destroyed crops. In an attempt to prove his claims, he gave same explanations. He told the trial court that he leased the rice paddy for shillings 800,000/= he used shillings 400,000/= for landscaping and another shillings 180,000/= for rice seeds. Shillings 280,000/= was 11 spent for what was termed as land 'dipl' and another Shillings 480,000/= for what was recorded as land back, and'and an amount of Shillings 168,000/=was spent for spraying and shillings. 40,000/= as transport costs and another shillings. 42,000/=was also used for spraying what was mentioned as 24D. Mere statement from the claimant does not amount to evidence. In law evidence is any material fact or. assertions of fact that may be submitted to.a court as means of ascertaining the truth of any alleged matter of fact under investigations. Listing of the amount claimed per se is not evidence that the amount claimed is due and payable. There must be evidence or facts supporting the amount claimed. No evidence was tendered to support the amount alleged to have been spent in the Respondent's field. In its judgement the trial court was of the view that despite the fact that the Respondent had failed to prove the amount he claimed in the suit, nevertheless he was entitled for compensation for his destroyed rice farm. The District appellate court agreed with that holding. On my part, I agree with this concurrent findings and holdings of the two courts bellow. Conflicts between herders and farmers in these areas are very common as farmers and herders utilise the same land. Normally herds of cattle encroach on cultivated areas damaging crops. Assessing damaged crops 12 is a difficult task to victims and particularly so where the victim is a peasant. The assessment of value of crops damaged is a technical issue which involves taking photos as soon as possible, identifying the crops growth stage, the inputs invested in the field etc. No peasant can be expected to afford assessment and evaluation of his crops after destruction. It is for those reasons that once court finds that the peasant's crops were destroyed there must be some compensation to try to enable the claimant to be as near,as possible in the position,he would have been had his crops not destroyed. In such circumstances, the compensation should be in form of general damages the quantum of which js in the court discretion. To hold otherwise would encourage acts herders in the society to encroach in the peasants fields with impunity.. COUR A/^ . i.k. MRUMA A.R. Ml JUDGE 13. 8. 2024. 13