MANGERA BARNABA JUDGEMENT 0001

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY)

THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) PC. CIVIL APPEAL No. 21214 OF 2024 (Arising from the District Court of Bunda at Bunda in PC Civil Appeal No. 3863 of2024 originating from Bunda Urban Primary Court in Civil Case No. 211 of2023) MANG'ERA BARNABA............................................................... APPELLANT Versus MARWA WAMBURA PIUS................................................... RESPONDENT

JUDGMENT 29.01.2025 & 31.01.2025 Mtulya, J.: The record of instant appeal shows that Mr. Marwa Wambura Pius (the respondent) had approached Bunda Urban Primary Court (the primary court) on 21st November 2023 and lodged Civil Case No. 211 of 2023 (the case) complaining that Mr. Mang'era Barnaba's cows had entered and damaged his rice crops in his farmland located at Bunda District in Mara Region assessed at Tanzanian Shillings One Million Three Hundred Thousand (l,300,000/=Tshs). The primary court then had summoned the parties to appear and explain on the dispute and the parties had entered their appearance on 27th November 2023. In registering relevant materials in favor of the case, the respondent (SMI) was recorded to have said that: mnamo tarehe 18.11.2023, siku ya jumamosi, i nilipigiwa simu na Bwana Robert kwamba ng'ombe wa mdaiwa wapo shambani. Ndipo niUrn warnbia ng'ombe wabaki paie paie awaiinde. Baiozi aiienda kuthibitisha. Bwana shamba pia aiifika. Uhaiibifu uiikuwa wa ekari tatu. Mdaiwa hakutaka kufika eneo ia tukio. Tuiiswaga ng'ombe mpaka kwake. Bwana shamba aiitaka wamaiizane, mdaiwa aiikataa. In replying the complaint, the respondent stated that: mifugo yangu haikufanya uhaiibifu wowote kwenye eneo ia mdai In order to corroborate his evidence, the appellant had summoned Mr. Robert Marwa (SM2) and Mr. Boniphace Sylvester (SM3). The materials produced by SM2, show

that: tarehe 18.11.2023, majira ya saa tisa niiiona ng'ombe wa mdaiwa wakiwa kwenye shamba la mdai. Niiipiga simu kwa mdai. Aiitoa maagizo kwamba tuwakamate. Baada ya kufanya hivyo, mke wa mdaiwa aiisaidia kutoa ng'ombe. Pia mdaiwa aiifika na Bwana Shamba na tathmini iiifanyika. On the other hand, SM3 had testified that: tarehe 18.11.2023 nilipigiwa simu na Robert kwamba shamba limeliwa. Ndipo tuHzuia ng'ombe, Baiozi aiifika na kushuhudia. The record is silent on admission of any exhibits during hearing of the case to corroborate the materials brought by prosecution witnesses SMI, SM2 and SM3. 2 The primary court, after considering all necessary materials brought by the parties, had resolved that: mdai ameshindwa kuthibitisha dai kutokana na nguvu ya ushahidi wake kuwa hafifu kama ilivyoelezwa katika kesi ya Hemed Said v. Mohamed Mbihi [1984] TLR 13. The reasoning of the primary court is displayed at page 4 of the judgment, in brief, that: Ushahidi wa mdai aiipigiwa simu. Shahidi namba 3 pia aiipigiwa simu. Hata hivyo, hakukuwa na uthibitisho kuhusu uhaiibifu uiiofanywa na mifugo ya mdaiwa. Hakukuwa na makabidhiano ya mifugo hiyo kupitia uongozi ambao ungethibitisha umiiiki wa ng'ombe ambao wamefanya uharibifu. Hakuna ushahidi ambao umetoiewa na mtu ambaye aiifanya tathmini kuthibitisha kwamba uhaiibifu huo ni wa shiiingi miiioni moja na iaki tatu. The decision and reasoning of

the primary court had aggrieved the respondent hence approached the District Court of Bunda at Bunda (the district court) and lodged Civil Appeal No. 3863 of 2024 (the appeal) complaining that he had marshalled two (2) eye witnesses at the primary court and the appellant had declined to call any witnesses. The district court heard the appeal and finally had decided in favor of the respondent and reasoned 3 that: the appellant brought two witnesses, and specifically SM2 who saw the respondent's cows in the farm. Also, there are letters of agriculture officer stating to witness the destruction. The decision of the district court in the appeal aggrieved the appellant, who had rushed to this court and registered a total of five (5) complaints in PC Civil Appeal No. 21214 of 2024 (the civil appeal). The reasons of appeal, in brief, show that: first, the cattle were not identified by special mark to distinguish them from other cattle; second, the agriculture officer's letter was not tendered as exhibit; third, there is no handing-over certificate; fourth, material witnesses ten cells leader and agricultural officer were not summoned and finally, the respondent failed to prove all necessary facts to constitute the alleged claim. The parties were summoned in this court on 29th January 2025 to register relevant materials for and against the appeal. As the parties were lay persons, they

had very brief submissions. According to the appellant, in their area of jurisdiction, cattle are marked in their bodies and there are plenty of farmers keeping and grazing different livestock distinguished in their specific marks. The appellant submitted that his livestock are identified by special mark number 111 and the authorities in the area are aware of the same, but he was brought before the primary court by the 4 respondent without any evidence of the animal's mark during the arrest of the animals. The appellant submitted further that he did not witness any letter of agriculture officer being registered and read-over before the court during hearing of the case hence the district court was wrong in citing the letter in its decision. The appellant explained that the evidence of cattle and handing-over to his wife is not correct as the allegation was not backed-up by any handing-over certificate or justification of presence of village leaders. The appellant stated further that the allegation registered by the respondent cited a ten cell leader and agriculture officer to be present at the respondent's farmland and witnessed the destruction of the crops, but the respondent declined to summon them to corroborate his testimony. Finally, the appellant claimed that respondent had failed to prove its case in the primary court for failure to establish all necessary elements of the

complaint, including identification of the animals' special mark and calling of important witnesses. In replying the submission, the respondent admitted that it is correct all animals in their villages are distinguished by different marks, but he was able to identify the appellant's animals after 5 appellant's wife claim that the cows belong to the appellant. According to the respondent, he refused to hand-over the animals to her and took them to the appellant's residence in aid of the agriculture officer and that the appellant did not dispute. The respondent stated further that on the day of the incident, 18th November 2023, he called Butakale Mtaa Executive Officer at Bunda Store Ward and asked him to call agriculture officer and called him. The respondent stated that he had produced two (2) letters as exhibits in the primary court during hearing of the case and the letters were drafted by Ward Executive Officer of Bunda Store area of jurisdiction and agriculture officer. According to the respondent, he gave the letters to the learned magistrate and were read before the court room. The respondent submitted further that he handed-over the animals to the appellant and did not dispute the same hence the animals belong to him. Regarding the calling of ten cells leader and agriculture officer, the respondent admitted that the dual were not summoned to corroborate his evidence, but

had summoned eye witnesses who were present at the scene, namely SM2 and SM3. Finally, the respondent submitted that he handed-over the animals to the appellant without any hand-over certificate, because the appellant had refused to sign the certificate in the presence of the 6 agriculture officer arguing that the right of parties will be resolved by the court of law. In rejoining the respondent's submission, the appellant submitted that the respondent does not tell the truth and had brought in the primary court fabricated materials against him. According to the appellant, on the alleged day, he was grazing his animals and not his wife and in any case his wife has no any mandate in his animals. The appellant insisted further that the respondent did not produce any letters during hearing of the case for him to see and cross examine on the contents. Regarding refusal to register appellant's signature in the handing-over certificate, the appellant submitted that the respondent had produced lies and had remained silent as to why he did not take necessary steps to inform leaders such as hamlet chairman, village chairman or ward executive officer on the refusal. The appellant submitted further that the respondent's complaint had escaped the usual route of registering complaints at hamlet and village levels for reasons best known to the respondent. With regard to eye witnesses SM2 and

SM3, the appellant submitted that the dual were called to corroborate the respondent's allegation, but had declined to testify on identification mark of the cows found at the farmland. 7 Finally, the appellant stated that he did not refuse to sign any documents and if that argument is correct, the respondent has to reply an issue why he did not take steps to report the matter to the hamlet or village chairman or ward executive officer. According to the appellant, the respondent had fabricated the case against him without any evidence and that is why he escaped traditional method of reporting matters to hamlet and village authorities. I have perused the record of the instant appeal and found four (4) important matters to be considered in resolving this dispute, namely: first, existence of exhibits to justify the respondent's claim; second, existence of eye witnesses; third, existence of cows' mark; and summoning of material witnesses. In the instant appeal, the record shows that the respondent and SM3 were not at the scene of the alleged wrong. The record shows that they were cell-phoned after the alleged incident had taken its course. In brief, the dual had testified hearsay evidence, which cannot be heavily relied in presence of the direct evidence. The law enacted in section 62 (1) (a) of the Evidence Act [Cap. 6 R.E. 2022] (the Evidence Act) requires oral evidence to be

direct and if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it (see: Vumi Liapenda Mushi v. Republic, Criminal Appeal No. 327 of 2016 & Abdulaziz Hassan v. 8 DPP, Criminal Appeal No. 16 of 2022). In the instant record, SM2 witnessed cows in the respondent's farmland. His direct evidence shows that: ...tarehe 18.11.2023, majira ya saa tisa niliona ng'ombe wa mdaiwa wakiwa kwenye shamba la mdai. Niiipiga simu kwa mdai. AHtoa maagizo kwamba tuwakamate. Baada ya kufanya hivyo, mke wa mdaiwa aiisaidia kutoa ng'ombe. Pia mdaiwa aiifika na Bwana Shamba na tathmini Hifanyika. On the other hand, SM3 had testified that: ...tarehe 18.11.2023 niiipigiwa simu na Robert kwamba shamba iimeiiwa. Ndipo tuiizuia ng'ombe, Baiozi aiifika na kushuhudia. The statement of SM2 is silent on the species of cows either in colours, number or special identification mark. The testimony of SM2 suggests that he knew the cows before even the arrival of the appellant's wife. In the record, SM2 cites agriculture officer and appellant whereas SM2 cites ten cells leader. The dual were government officials holding authorities in the village. However, the respondent had declined to call them as important witnesses testify on necessary materials, including the valuation report to justify the 9 extend of destruction in the alleged farmland and at least, to show that the

appellant had refused to sign the handling-over documents. The rule of the thumb is that failure to call material witness to corroborate party's evidence may move the court to draw an adverse inference against the party (see: Wambura Marwa Wambura v. The Republic, Criminal Appeal No. 115 of 2019 Lazaro Kalonga v. Republic, Criminal Appeal No. 348 of 2008). • It is unfortunate on part of the respondent that the record is silent on a prayer to tender exhibits, admission of exhibits or reading of the exhibits in court to corroborate the materials brought by prosecution witnesses SMI, SM2 and SM3. In brief, the reasoning of the district court on exhibit letter of agriculture officer, which it had relied to overturn the decision of the primary court, stemmed on wrong footing. In such circumstances, it is difficult to say that the respondent had established his case in the balance of probability as required by the law (see: Regulation 1 (2) of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, GNs. Nos. 22 of 1964 & 66 of 1972, section 3 (2) (b) of the Evidence Act and practice in Hemed Said v. Mohamed Mbilu [1984] TLR 13). io In the end, and having said so I overturn the decision of the district court in the appeal and maintain the decision of the primary court in the case. I do so without costs as the appellant did not pray for costs and in any case, the

respondent had approached the primary court to lodge the case in good faith believing that he has all necessary materials to prove the complaint. Court: This judgment was issued in Chambers under the Seal of this court, today, 31th day of January 2025, in the presence of the appellant, Mr. Mang'era Barnaba and in the presence of the respondent, Mr. Marwa Wambura Pius. ------ 1 F.H. Mtu^aJ Judge 31.01.202 ii