19760317 TZHC Arusha

- -#_- -" C 1')'? IN THE 111GM COUIT 01? TAiZANIA AT LpTTi:TA (pa) CIVIL LPPEIJ ITO. 127 OF 1973 (FROM TJ.: DECSICIT Of 'liT DIiIfLICf COiJ2 OF 1UG 1T BABLTI IM CIVIL hPPEAL NC • 11 O 1973) MLLE D/O AMSO PPELLL.NT versus BJ.RMLNI BOILBO ... . , . . . . . . • RESPONDENT ]JGEMIN iI1. J. This is second peal by thç appellant Male d/o ik'veso from the judgoment and decre' ofthe. primary Court of Hanang District at ±aesh dismissing appellant s sui for compensation in rspcci of appellant s crops which she claims were destroyed in the. farm by respondent 's cattle. The appellant sought pa'.aent of sh3.285/= as compensation. In dismisein the suit, the Primary Court ased it? cIecisin upon the ground that the Customary Lae of the Iraqw tribe to which the. artiss belon.cd. dii:. not sanction iayn1ont of compensation in such a case • The trial primary Court then aware a sum 01 e.70/= to the appeilant/plalnGLIf as costs of the suit. The district court for diffornt reasons upheld on apoa•l the decision of the trial court in so far as the dismissal of the suit is coicern.c. but ;c ecic th order for payincat of as costs to the apl1ant/plaintif.f. Predictably, the appclLnt/plaintiff was aggrieved. b the decision of the district court and she appealed to tJai couirt. In settin'. aside the order for costs, tho district court correctly found that there was no basis for the mahing of such order

sinco the a 1ipoilan.t/plaintiff failed in her suit i2o. bhc primary court. In upholding the trial prtaary court ' s doaision dismissing the suit, the apel1ate district court was of the view that the suit was based in tDt but there was no sufficient evidence to upporGe the claim 01 the appellantf plaintiff. The first point for consideration in this case is whether there is no ruLe of Customary Law anong the Iraqw tribe sanctioning the pay.11Qnt of conoonsation for destruction of crops by cattle. The ovid :nce on record overwhe1ning(Lphows the absence of such a rule. Prior to the case going t'o Court, the matter was heard by a group elders who found no basis in law custoniaryfdr payinont of such compensation but directed the rospondem to brew a drumful of local liquor as a healing measure of the diepue;e between the parties. Presumably the liquor would have be.on consumed by the elders and the parties concerned. The respondent however refused to go along with the elders' decision. So, I aa on the evidence that among the Iraqw tribe there is no rule of custoimary law sanctioning the pamcnt of compensation for destruction of crops by cattle. -'a -2- It is a vary surprising situation but apparently it makes sense anong the Iraciw people.. .. - The next point •I' • thvo to consider is whether appellant/ plaintiff's, suit can be based in tort under tIo gonerl law of this country and

. ochor the trial primary court had jurisdiction to iatorthin 'asui't baaed.'in tort. Undoubtedly, destruction of c'ops due to stray cattle amounto to the tort known ac Cattle .ro.spass. Section 14 of the Magistrates Courts ict 1963 defines .the jurisdiction of a prinary court and. it is clear ±roe the provisions of that section as aacdc . by ct No. 50 oil 1968 te.t a primary court has no jurisdictionoto entertain a suit based in tort. Such a suit bee e. im-iort eould nvo 'OOm instituied in a district court with civil 'jurisidtion or a court of the resident inagietrato Now, since this suit wac instituted in the prinary court under cus'bo.aory law and was not instituted as it should havo boon, in I the 'districG court under the law of tort, I need not consider whether the ovidonco adduced at the trial primary court would -been sufficient to o stabltish appollant/ plaintiff' s claim had she instituthd her suit in the district court or court of a reside-nt yistra -to, since she can still decide to do so • If she decides to do so, the question whether the suit is roe judicata may have to be considered by the districG court court ci the resident magistraioo But as nottcs re prcnc, his c-oel cennot euccocd in bL'- li at T -L r 1 vo it cuil v r is , c-,ndl thc opocl is therefore dismissed. Since, the respondent did not appear in this appeal no ord' as to payment of -the costa of this

aproal will be made. To save the Lppollant from the iu1cOflVdflio]cc and .xpcnsc of travolling frcn±i Kaih in IInizg di5trict to 1rusha to tn aellvorQ f hiJuc.n.nu , ±t is cm'Lctod th t this judgcnon bL. Jivc in tn. Apollcat by the district Magistato far dist±iOt court: oi' Hanang district at Babati who should 'bc 'supplied with a copy of this...judfocloni for that iurposo. . . ARU-SHi: 17/3/7 (F. T. IiLI) J.G. JUTDCI-E. FLI\T/TITPN.