JUMBE HAMISI JUMBE tanzlii

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA PC. CIVIL APPEAL NO. 11667 OF 2024 (Arising from Civil Appeal No. 8 of2023 in the District Court of Kondoa; originating from Civil Case No. 5 of2023 in the Primary Court of Kondoa) JUMBE HAMISI JUMBE........................................................................ APPELLANT VERSUS MVULA AMRI...............................................................................1st RESPONDENT ABUSHEE MOHAMEDI PLANI..................................................... 2nd RESPONDENT JUDGMENT 14th August & 11th October, 2024 MUSOKWA, J. The instant appeal emanates from the decision of the District Court of Kondoa in Civil Appeal No. 8 of 2023. Briefly, the matter was originally instituted in the Primary Court of Kondoa in Civil Case No. 5 of 2023 (trial court). In the trial court, the appellant herein successfully sued the respondents and obtained a decree of TZS 1,290,000/- as damages for the destruction of his crops, allegedly caused by the cattle owned by the respondents. Aggrieved by the decision of the trial court, the respondents herein lodged an appeal in the District Court of Kondoa whereby the i judgment was entered in their favour. The appellant herein, determined to pursue his rights further, has lodged the instant appeal which is predicated on the following grounds reproduced hereinafter verbatim: - 1. That the 1st appellate court erred in law and fact to make a decision in favour of the respondents regardless the evidence adduced by the appellant which proved the case in preponderance ofprobabilities. 2. That the 1st appellate court erred in law and fact to make decision in favour of the respondent relying on mentioned Siraji and Emmanuel who were not called to testify; whilst the appellate court acknowledged respondents' settlement to pay destructed crops owned by the appellant. 3. That the 1st appellate court erred in law and fact to make decision in favour of the respondents relying that the shamba which was destroyed appears in two different villages; the said suit area. 4. That the 1st appellate court erred in law and fact in deciding the case in favour of the respondents basing on weak and contradictory evidence adduced by the respondents. On the date scheduled for hearing, both parties appeared in person, unrepresented. Fending for himself, the appellant submitted that on 28th March 2023, he found two boys, relatives of the respondents grazing cattle in his farm. The appellant further stated that sufficient evidence was adduced in the trial court to prove his case, resulting in the judgment being entered 2 in his favour. Thus, he challenged the decision of the District Court which reversed the decision of the trial court and entered a judgment in favour of the respondents. The appellant referred to the testimony of the agricultural officer and stated that the District Court erred by failing to consider the testimony of this key witness. Further, the appellant contended the assertions by the respondents that the testimony of this witness is irrelevant as he resides in another ward, different from the location of the suit land. In an attempt to provide clarity, the appellant stated that the agricultural officer is from Kinyasi Ward. Submitting further, the appellant asserted that the testimonies of the militia men were true and the District Court erred in disregarding the said testimonies. The appellant further challenged the findings of the trial court to declare that the two boys who were found grazing cattle in his farm were innocent; and that they were not responsible for the damage thereof. In reply, the 1st respondent at the onset prayed for this court to uphold the decision of the District Court. The 1st respondent vehemently contended the assertions by the appellant that the respondents were arrested and detained after the incident; adding that the allegations were false and unfounded. 3 Further, the testimony of the agricultural officer was challenged by the 1st respondent for failure by this witness to involve the local authorities during the assessment of the alleged destruction of crops. The 1st respondent added that the assessment exercise was conducted in contravention to the requirements of the law. Finally, the 1st respondent prayed for the dismissal of the appeal with costs. The 2nd respondent in his submissions in reply argued that neither the respondents were arrested, nor their cattle confiscated by the authorities. The 2nd respondent stated that the evidence adduced by the appellant at the trial court was insufficient, resulting in the reversal of the decision by the District Court. In addition to the aforementioned, the 2nd respondent challenged the failure of the appellant to summon local leaders to testify at the trial. Reiterating the arguments advanced by the 1st respondent, the 2nd respondent also challenged the testimony of the agricultural officer. Finally, the 2nd respondent countered the allegations of damage to property, due to the distance between the respondents' place of residence and the appellant's farm. The 2nd respondent submitted that the respondents live in Ikengwa village, while the farm of the appellant is located in Irongoriro village. That considering the distance between the two locations, it is evident 4 that the allegations are mere fabrications, as the cattle always graze around the neighborhood and not elsewhere. Further, contrary to the assertions by the appellant, the 2nd respondent stated that the incident was not reported to any local authorities; neither the local leaders in Irongoriro village, nor in Ikengwa village. The 2nd respondent joined hands with the 1st respondent, and prayed for dismissal of the appeal with costs for want of merit. In rejoinder, the appellant prayed to adopt his submission in chief and proceeded to contend the assertions of the respondents on failure to report the incident to the local authorities. The appellant claimed that he duly reported the matter to the village executive officer of Irongoriro. As regards to the distance between his farm and the respondents' residence, he submitted that contrary to the assertions of the respondents, his farm borders the respondents' residence. Thus, the appellant prayed that the court should allow the appeal for the interests of justice. Upon hearing the rival submissions of the parties, and after conducting a thorough perusal of the records, the issue for consideration is whether or not the appeal has merits. The matter before this court is a second appeal. In the circumstances, this court shall confine itself to determining whether or not there was a 5 miscarriage of justice, a misapprehension of the substance, the quality of the evidence, or violation of some principle of law or procedure. This position of the law relating to the role of the second appellate court was stated in the case of Neli Manase Foya vs Damian Mlinga [2006] TLR 167. The grounds of appeal cumulatively challenge the evidence adduced by the respondents as weak and contradictory. The appellant further avers that during the trial, he successfully proved his case to the required legal standard. Hence, the decision of the first appellate court, reversing the decision of the trial court was unjustifiable. In a civil matter, the standard of proof is on the balance of probabilities and the burden of proof lies on the claimant. In the case of Antony M. Masanga vs Penina (Mama Ngesi) and Another, Civil Appeal No. 118 of 2014, (unreported) the Court of Appeal of Tanzania (CAT) partly held on page 10 that: - "It is a common knowledge that in civil proceedings, the party with legal burden also bears the evidential burden and the standard in each case is on the balance of probabilities. In Re B. (2008) UKHL 35, Lord Hoffman in defining the term balance of probabilities stated that: - "If a legal rule requires a fact to be pro ved (a "fact in issue ') a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values 6 are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden fails to discharge, it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened." [emphasis added] The respondents herein, during the hearing at the trial court, vehemently denied the allegations against them. Therefore, the duty of proving the claim was borne on the appellant. For ease of reference, on page 3 of the typed trial proceedings, it is recorded as follows: - "SMI: Tarehe 28/03/2023 majira ya saa nane mchana niiikuta ng dmbe 72, mbuzi 71, kondoo 40 na punda 3 wakichungwa katika shamba langu la mihogo ekari mbili huko Ilongolilo...migambo na wenzao wawili wa/ifika na kutuliza ghasia na kuhesabu He mifugo na kupata idadi..." Further, the testimonies of SM2, SM3 and SM4 corroborated the testimony of SMI, the complainant who is the appellant herein. In addition to the aforementioned, the assessment report on the value of the destroyed property was tendered and admitted as Exhibit'A'. Notably, the respondents had no objection to the admission of the said exhibit. 7 As regards to the weight of the evidence adduced by the appellant at the trial court, the district court being the first appellate court, on page 9 of the judgment, it was partly held as follows: - "...According to the facts at the trial court there is no doubt that the respondent suffered damages. This was proved by the respondent and his witnesses..." [emphasis added] Despite the above finding by the District Court, the said court proceeded to reverse the decision of the trial court merely on the basis that the respondents denied the allegations against them. The District Court further held that as a result of the denial of the charges by the respondents, the testimonies of the two boys who were found grazing cattle on the farm of the appellant, ought to have been among of the appellant's key witnesses. With due respect to the honorable magistrate, I decline to be swayed towards this line of argument. It is a trite law that the appellant was at liberty to parade any number of witnesses he deemed necessary to prove his case. Further reference is made to the testimony of SMI at the trial court as reflected on page 3 of the typed trial proceedings, whereby he testified that the respondents upon being summoned by the militia men appeared at the scene of the incident: - 8 "Migambo na wenzao wawi/i wa/ifika na kutuliza ghasia na kuhesabu He mifugo na kupata idadi. Waiiwaambia wawapigie wazazi wao simu, walisema hatuna saiio wah'omba namba hao migambo waliwapigia wazazi wao simu waiijibu tusubirini hapohapo tunakuja kweli haikufika muda wa/ifika. Waiifika na kukuta ng'ombe kwenye tukio na kusema mzee tunaomba utusamehe..." [emphasis added] In light of the proceedings of the trial court, and the corresponding evidence thereof, I am of the settled view that the appellant proved his case to the required legal standard. Having said so, I find this appeal to be meritorious and the same is allowed with costs. Additionally, the decision of the trial court is upheld in its entirety. Accordingly, the judgement and the corresponding proceedings of the District Court of Kondoa are quashed and set aside. It is so ordered. Right of appeal explained. DATED at DODOMA this 11th day of October, 2024. Judgment delivered in the presence of the appellant; and in the presence of the 1st and 2nd respondents. 10