20070706 TZHC Mwanza

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IN THE HIGH CQURT OF THE UNITED REPUBLIC OF TANZANIA . IN THE DISTRICT REGISTRY

ATMWANZA P.C. CIV. APPEAL NO. 26 OF 1997 (Arising Magu District Civ.App. No.195, Original from Civil Case No. 169 of 1996 Jgarukiro Primary Cowt) KEPHA IGENGE & 28 OTHERS ............. APPELLANTS Versus: 1. ABEL MAKOYE _ } ........-.... RESPONDENTS 2. MAKAYO NTIMBA 10/05/ & 06/07/2007.

JUDGEMENT Sumari, J The appellants brought an action ih the Primary Court of . I Igarukiro at Magu for a claim of Tshs. 1, 027, 533/= being compensation for their crops. destroyed by the respondents' cattle. The trial court entered judgement in favo r of the appellants and ., i ordered the respondents to pay Tshs. 116,000/= as compensation. · When respondents appealed against t at decision to the District Court of Magu appellants lost. Aggriev d by the District Court decision they (appellants) have appealed o this Court to have the decision of the Primary Court restored. At the trial court the appellants alleged that respondent's cattle had damaged or destroyed the appellant' crop on 27/08/1996. The I I _ ..,_,, ...... ,.,- ....... M ;,,,..,• ...,._~~····.. -~..,..,,.T.,,.. ,,_ .., . .__ ..... '-·· ., ;.'J!.'_,, -_ ,•.A•·.:._ .. A.-:..~-~-. _, .., ·---. -._ : ·f:_. ~ ~--·· I appellants' evidence before the trial court was that on 27/08/1996 PW 1, PW 2 and PW 3 f~und the 2nd respondent Makayo Ntimba driving 130 herds of cattle from the direction of small sham bas of the appellants. When they reached their shamba·s they found in their shambas 32 herds of cattle inside their shambas destroying their crops. PW 5 Barnabas Lihola is an independent witness in this case. This .witness together with PW 4 Edmond Mam bile supported the evidence of PW 1, PW 2 and PW 3 (Appellants) that

on the fateful day 32 herds of cattle were found in the appellants; small shambas. The Primary Court visited the ''locus inquo// and after considering the evidence available found that the responderts cattle in a way ' contributed to the destruction of the crops as they also found in I ' i . some shambas cattle were scattered despite the fact that most of the crops looked weak due to droughtness. The trial court therefore· awarded each appellant a token of Tshs, 4,0lr/= which ranged to the total amount ofTshs. 116,000/= for all app llants. · 1 The first appellate court reversed the decision of the trial court on the basis that the whole evidence was n t clear and reliable. Further to that, the appellate court held hat the trial court committed a fundamental error in law by a lowing some of the appellants to take up the matter on behalf o the others without being armed with a power of Attorney. The Dis rict Magistrate found · such representation unlawful. He therefore allo ed the respondent's appeal and reversed the trial courts decision. At the hearing both sides were represe ted. Mr. Butambala, learned counsel represented the appellants wh le Mr. Muna learned 2 ,.ij counsel represented the respondents. They argued this appeal by written submission. Mr. Butambala learned counsel for appellants filed 14 grounds of appeal which had proposed to argue them generally; except ground

7. In submission he said the trial court which visited the "locus inquo" was fully satisfied that there· was damage which was caused by the respondents' cattle in the shambas belonging to the appellants. That was a ,finding on a matter of fact which the appellate court -could not lawfully interfere with unless there are in existence some exceptional circumstances calling for such interference. For him in this case there are no such exceptional circur,stances because the I trial court had visited the "locus inquo"and saw for itself some cattle I grazing in the shambas in question. And ap~rt from finding some I c~ttle in the shamba grazing, the trial court wa.~ the only court which I was in better place to access credibility ol witnesses who had testified before it. The appellate District Court had no such opportunity and so under those circumstance it was wrong for the District Magistrate to give remarks that the witnesses had given unreliable evidence. The learned counsel for appellants thus called upon this court to uphold the findings of the trial court on matters which were purely factual by confirming the or ers for compensation. Back to his ground 7 of the appea the learned counsel submitted that the appellate District Court er d in pressing up for a Power of Attorney before one could make re resentation of a party to a suit in the primary court. He referred thi Jcourt to

the provisions of section 33 (2) of the Magistrates' Court Act 1984 which reads: 3 "Section 33. (1) ........................... . (2) Subject to the provisions of subsections (1) and (3) of this section an·d to any rules of court relating to the representation of parties, a primary court may permit any relative or any member of the household of any party to any proceedings of a · civil nature, upon the request of such party,, to appear and act for that party/' Under this provision the learned couns~I is saying it was . therefore not necessary for the appellants to bei armed with a Power of Attorney in order to represent tho~e who ~ould not testify. In , l further support of his argument he referred the' court to the case of Palimi · Nzumbi Vs.· Petro Nyororo Misc. C~v. App. No. 26 of 2006 Mwanza Registry (unreported) whJre Masanche, Jhad this to say: l ''It is true, as Mr. Kitwala, learned Ad ocate says, that in primary courts relatives can appear i court in place of a real litigant. They do not have to file Power ofAttorney." · He finally asked this court to quash the ecision of the district court by affirming that of the primary court; and prays for costs. In reply Mr. Muna, learned counsel or the respondents submitted that the District Court reversed the trial court's decision because the evidence was not clear. That the rial court found as a 4 . ' i"" . ·4 • •

·•··•--•-•·•·••·· .S• ~· •"•~• •. ,.•.<=··--·· L .•• = ... oc I fact that the shambas in dispute had been destroyed by drought and . had turned into grazing areas. For him the report (Exh. P.1) of Bwana Shamba who was PW.4 was not believed. He is of the views also that primary court magistrate declined to support appellant's evidence and was supported by the court assessors. For Mr. Muna, learned counsel these findings of fact entitled the District Court to quash the normal damages awarded as they were not supported by evidence. Since the District Court was the first appellate court was entitled to go through the evidence and come up with the findings it arrived at. He however, conceded that the district court erred in law in demanding for a Power of Attorney. But further submitted that the same does not vitiate' the findings that the eyidence was not clear I and reliable. He stressed that the trial court had found that l respondents cattle did not contribute to th:e destruction of the I shambas which had already been destroyed y drought and other herds of cattle. He further submitted that besides the as ertion of PWI that he was closing the case for and on behalf of th other appellants he had not earlier told the court when the case started that he would give evidence on behalf of his fellow appella, ts hence his evidence 1 cannot be seriously be taken to represent the Jther

claimants. He did not seek permission to act for the other a pellants and no such • permi_ssion was given. He finally submitted hat the district court found so many contradictions in the evidenc of the appellants .He ( cited examples where PW2 failed to explain is claim and when re- examined failed to mention the side of the ma ks of the respondents' 5 '" .t cattle. Also when · PWI said the cattle were taken to the village chairman, PW3 said that the heads· of cattle were handle·d to 2nd respondent at the scene of the event. Further contradictions are reflected in the evidence of PW4 (Bwana Shamba) who said he found the heads of cattle in the shamba of Elias Mwachura alone while on cross- examination by 2nd respondent the cattle ·out of the scene of event he said he found the cattle out of the scene of event. The learned counsel further attacked evidence of Pw3 and Pw5. According him Pw3 said that the cattle . were handled over to 2nd respondent while Pw5 said that the cattle were taken by the 4th respondent. With due resp,ect to the learned ' counsel, the case involved only 2 respondents, I pon't know ~ho is this 4th respondent he is referring to. The learned counsel for respondents furth:er submitted that ! with such contradictory evidence on record, the District Court was entitled to call the evidence. unreliable and accordi gly was entitled to reverse the issue of damages

which was based on mercy rather than evidence as there was no cogent reason for the primary court to give what was termed 'kufutia machozi' dam ges. To him. this shows clearly that the primary court magistrat was himself not satisfied with the quality of the evidence adduced and therefore the District Magistrate judgement was well founded. He prayed for the appeal to be dismissed with costs. The main issue to be determined in this ap eal is whether the appellants' crops were destroyed or not. If the answer is in the 6 .. ' affirmative the next issue to be resolved is whether such destruction was caused by the respondent's cattle. There was evidence of only three witnesses as complainants in this case. These were Pwl, Kepha Igenge, Pw2, Donald Kusekwa and Pw3, Elikana Sute. The. other witnesses Pw4 and PwS were witnesses called to support the appellant's evidence. Tt:ie trial court found as a fact that the shambas in dispute had been destroyed by drought and had turned into grazing areas. This is clearly reflected in the trial court's typed judgement at page 2 lines 14 and I quote: "... lakini mazao mengi yfi:menyaushwa na l ukame mkali na mahakama imekhindwa kuelewa I bwana shamba alikua anatu,t,ia kigezo gani maana kuna shamba moja tu 1k viazi matuta 7 y~?e ~re~u w~ hatua 6 k~na m+ea mita~o tu ya v1az1 m1ng1ne 1naonyesha 1mekau hwa na 1ua." ·. To prove that the said shambas

had tur ed into grazing areas, the trial magistrate in the same page 2 of the typed judgement held that, at the /ocus inquo"they saw cattle hoov s which indicated that 11 cattle are been grazed there everyday, I qu te the said sentence · (line 19): "... inaonyesha kabisa kuwa dalili za kwato · za ng'ombe hizo ni za kila siku katika ene la tukio ... " As well submitted by Mr. Butambala learned counsel or the appellants, trial court was the only court better placed to asse s the damage caused. So what was seen at the "locus inquo'' by ,he trial court is what reflected in its judgement. The quoted passag~ and sentence (supra) l 7 I i ! ! leaves no doubt that there was a destruction of the alleged crops of the appellants and therefore the main issue i.e: whether the appellant's crops were destroyed or not is answered in the affirmative. The next issue then is whether such destruction was caused by respondent's cattle? This issue is answered in the negative. Why in the negative? From the judgement of the trial court at page 2 lines 20 again the trial court had stated the following, I quote: "... Je kwa sababu ya siku hiyo ng'ombe wa wadaiwa walikutwa kwenye eneo la tukio katika mashamba yaliyochoshwa Ila kulishwa na mifugo wa kila siku alaumiwe nai kubeba msalaba wa . i . uharibifu wa ·ukame na rl7ifugo wengine kama ndama tuliowakuta shambahi... " This Clearly waived the responde

t's liability that their cattle caused the alleged crops destruction. I w nder what then pushed the trial magistrate to award the so called "kifutia machozi" to the appellants having being satisfied that t e shambas destruction was caused by drought and other persons' he ds of cattle. This brings me to Mr. Muna's s bmission that the District Magistrate was entitled to reverse th trial court's decision on damage which decision based on mercy rather than evidence. After all the evidence as well founded by he District Magistrate was unreliable as the same was not clear. N t clear because the same is t surrounded by so many contradictions a well analyzed by Mr. Muna, learned counsel for respondents. 8 I see no way I can fault the District Magistrates' findings on this issue. That no reliable evidence to prove that the destruction of the alleged crops was q1used by the respondent's cattle. Finally, I wish to pointout on the issue raised by the appellant's learned counsel as to whether the trial court was correct in granting leave to the appellants to make some representations on behalf of those who did not give evidence. I quite agree with Mr. Butambala, learned counsel for appellants that under section 33(2) of the Magistrates' Court Act, 1984, it was not necessary for the appellants to be armed with Power of Attorney to repr:esent those who were not j in court to

testify. . On . this issue I subscribe! my brothers' findings His • Lordship Masanche, J in Palimi Nzumbi Vs. Petro Nyororo Misc. I Civ. A . No. 26 of 2006 Mwanza Rei ist in primary courts· relatives can appear i court in place of a real litigant. They do not have to file a Power o Attorney. Notwithstanding this, the District C urt's judgement is hereby upheld and subsequently for the -reas!ns given, the appeal is dismissed with costs.

JUDGE

ATMWANZA 06/07/2007 Delhrered in presence of b th parties. 9