20181204 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA (PC) CIVIL APPEAL NO. 13 OF 2018 (Arising from Kiomboi District Court in Civil Appeal No. 20 of 2017 and originated from Civil Case No. 28 of 2017 at Shelui Primary Court) LOTOBISHASOI'1I .................................. ................. ..... APPELI..ANT VERSUS NYERERE JOSEPI-I.... ........... .... ......... ................ .........RESPOFIDENT 1811012018 & 411212018 JUDGMENT MASAJU, J. In the trial court, Shelui Primary Court, the Appellant, Lutobisha Somi, was held liable in tort upon his cattle had destroyed the Respondent's one (1) acre watermelon farm. The Appellant was condemned to pay the Respondent, Nyerere Joseph, TZS 6,150,0001= as compensatory damages for the incurred loss. The Appellant then unsuccessfully appealed to the District Court of Iramba at kiomboi, hence this second appeal. Being the second appeal the court is essentially enjoined to consider matters of law, though the Court can also consider evidentiary facts in its revisionary jurisdiction. 1 In his petition of Appeal the Appellant did field a total of five (5) grounds of appeal, thus: That, the trial District court erred in law for its failed to discover that, the lower court has lacks jurisdiction to entertain the suit for being the suit is about land issue (s/c) That, the trial District Court erred for misdirected himself/n their decision for not consider that, the proceedings of the lower court was void for left assessors in making decision (sic) That,. the trial District Court erred in law in, holding by relied • .. upon only the evidence ofthe Respondent at which is quandary and failed to consider tile evidence adduced by the Appellth'it: (sic) That, the trial' District Court erred in law and in fact that the valUation is' vague thmugh: made by incompent person and. tis ñiade after one month passed 'sic) '. That, since there is no proof of the destruction of the land, the trial District Court erred in holding the Appellant to pay Tsh 6,000,0001= to the Respondent" 'sic,L The said Petition of Appeal was drawn and filed by Samwel L. Ndanga, the learned counsel for the Appellant by then. At the hearing of the appeal, the learned Counsel, Ms. Margeth Mbasha, appeared for the Appellant. The 1s t ground of appeal was dropped but the 2,. the. 5th grounds were retained by the Appellant. 2 2n1, In arguing the ground: of appeal the Appellant argued that the decision of the trial court was void for having been made without involving the assessors contrary to the Magistrates Courts (Primary Courts) Judgments of Courts, Rules, 1988 (G.N No. 2 of 1988) which provides in Rule 3(1) that the magistrate shall proceed to consult with the assessors present with the view of reaching the decision of the Court. (2) If all members agree, magistrate shall continue to record the decision." The appellant argued that in the instant case the procedure was not complied with by the trial Court. That, the record of the trial Court was silent on whether or not the magistrate sought the assessors' advice. That, the would be advice by the assessors was also not recorded. That, the trial court's judgment was therefore incompetent. The appellant argued the 3' through, the 5th grounds of appeal H collectively as he was of the opinion that the said grounds related to each other. The Appellant submitted that the District Court erred in law and in fact for failure to evaluate the evidence of the trial Court where exhibit "MX1" was considered and given weight by the Court without due evaluation of the veracity of the said exhibits v/say/s the evidence adduced in the Court by Alex Domician Kado (PW5). The Appellant argued that the parties statements at Shelul Police Station dated the gth day of September, 2017 reveal that the complainant was one Gwanda Msaba who own the farm whose crops (the watermelon) had been destroVed by the Appellant's cattle. That, according to the said statement the parties forgave each other and dropped the matter. That, the purported statements did not bear the 3 U name of police officer who recorded them and that the same lacked the stamp of the said police station for the would be its authenticity, if any. That, the valuation Report of the damaged property (crops) in the farm dated the 1 s' day of October, 2017 was wanting for the following reasons;. That the crops in the farm were allegedly destroyed by the nd Appellant's cattle on the 2 day of September, 2017 but the Report thereof was prepared/done one months after the incident. That the Report was therefore not realistic. The persons who have enlisted that own the farm are four, not one person. The Report is therefore contradictory to the gth day of statements made at Shelul Police Station on the September, 2017. According to the said statements the Respondent was not the one whose farm had been destroyed. The Report fell, short of explaining the number of the allegedly destroyed watermelon and how the costs of the damage thereof was arrived at. There was no receipt, say for purchase of the seeds or fertilizer thereof. The appellant submitted that the Respondent had a weak case, hence failure to' 'prove "the case against the Appellant on the balance of probability. The Appellant, accordingly, prayed the Court 'to allow' the appeal with costs. That, in the event the court agrees with his submissio on the 2 ground, (non compliance with the law), the proceedings of the trial Court should be quashed and the case be retried with no costs 4 'S • The Respondent, who had appeared in person when the appeal was called up for hearing, adopted fully his' Reply to the Petition of Appeal and prayed the Court to dismiss the Appeal with costs for want of merit. In the 2' paragraph of the Reply to the Petition of Appeal the Respondent avers that the assessors were not left behind in making the decision of the trial Court. in the 3rd ground of the Reply to the Petition of Appeal, the Respondent argues that his evidence in the trial Court was watertight than the appellant's hence the trial Court's right decision thereof. When all is said and done, the record of the trial Court reveals that the two Court assessors took part in the Proceedings of the trial of the case and that they were also consulted by the trial magistrate because, the copy of the Trial Court Judgment was signed by the two Court assessors alongside the trial Magistrate upon deliberation among themselves. The said Judgment that was composed in Kiswahili reads in part; thus: • • "Baada ya Mahakama Kuja dill hoja tajwa hapo juu kwa umoja wake inaona kuwa mdai ameweza kuthibitisha sehemu ya Madai yake kwa kujibu wa sheila ya Madai" Then the trial magistrate and the two Court assessors signed the said Judgment. Even if the deliberations and consultation thereof were not recorded, but it was on the record that the consultation and deliberation between the trial Magistrate and the two assessors were done and that the Court unanirnously agreed that the Respondent had proved his case against the Appellant in accordance of with the law of Torts. 5 That being the ease the 2' ground of appeal fails'rniserably. As to the grounds 35th in the PeUtion of Appeal which grounds of appeal are essentially on evidentiary facts,. the Court is of the considered opinion that the two lower Courts did so rightly consider objectively and decide the case on the basis of evidence that was add uced in the trial court by the two parties. . . The incident of the Respondent's crops destruction in his farm by the Appellant cattle was eyewitnessed by. the Respondent himself (PW1), who told the Court that a total of 3,600 watermelon stems (mashina) were destroyed by the cattle. Other eyewitnesses to the destruction by about 200 Cattle that belonged to the Appellant that were found in the farm were Gwanda Msarnba (PW2), Tambala Msabaha (PW3) and Elias Mayombi Samweli (PW4). Though Alex Domician Kado (PW5) the Agriculture and Livestock officer was not present when the Appellant's cattle were found in the Respondent's farm he was able to see for hiniselfthe destruction of the farm and prepared the valuation report thereof which report was part of Exhibit "MX1". The Appellant himself admitted in the trial court that PW5's testimony was truthful. In an answer to a question by Court Assessor Ni. Nyonyi on the 25th day of October, 2017, the Appellant himself testified, thus:. "Wabwana Shamba niwakwel/ ushahidi" That being the Case, the Appellant is estopped from derogation from his own testimony in the trial court, which testimony is on record. For the foregoing reasons, the, appeal which is devoid of merit is hereby dismissed in its entirety accordingly. The decisions of the two lower courts, are hereby upheld and confirmed accordingly with costs g;T -• tv Rsr J U DG /4/12/2018 7