19830510 TZHC Mwanza

Ar, THE UNITED REHJBLIC OF TANZANIA

IN THE HIGH COURT OP TANZANIA AT NUANzA (IQ) CIVIL APPEAl NO. 7 OP 1979 (Prom the decision of the District Court of Magu at Magutn Civil Appe&. No 72 of 1976 and Masanz 1 Primary Court Civil Case No. 51 of 1976 Before: S. Wangwe Esq., District Magistrate liOKI KAGOED AP1MLA1T versus

THOMAS MAGESE RESIONDEIT

JUDGEMENT MPAlILA_ Ih the Primary Court of Magu District at Masana1- 11'the respondent ia0 THOMAS MAGESE sued the appellant claiming Shs 800/compenaation for the damage and loss caused by the appellant twhen he.-'set on.iire his one aAxe eisoJ. shemba At the t.a1.the appellant successfully denied these allegations, The respondent told the xii2iary Court that one day a1 about noons he noticed some smoke.froia his sisal hamba He proceeded there and nearby he saw samébody grazing hie catt10 He aeke&;this person as to who had st fire to his sisal plantation and whether It Was be Who had done so This man denid and mentioned the appellant to be the person who had done so When approached, the appellant totally denied the allegation and refused to ppoar before the local conciliation bord Later in his evidence the respondent mentioned one tiz8i Lucas to be the person who had given him this infoxation in his own evidence Enosi Lt in one way or another attempted to confirm this but his evidence as Will be thow presently Was tremely confusod - In his own defence the appellant denied these allegations saying that on the day the respondent' s sisal plantation is alleged to have been burnt down he was away from the village and he coned witnesses to support his story The Primary Court unanimàusly disxiesed the claim holding that the respondent s evidence in support his claim Was extremely

shaky and unre1iab1e The trial Court refused to believe: Enosi Lucas saying that his evidence was oomTtradictory Against this decision the respondeit successfully appealed to the District Court which held that there Was no good reasoiiwhy Enosi Lucas should not have been believed as he had no reason to lie against the appe1lant The Oourt therefore awarded - - judgeinent to the respondent and ordered the appellant to. p as conpensation for the dczago he caused to the sisal plantation. this appeal by the appellant is against that decis±on1. When the respondent was giving evidence the inpre -son he gave at the bc.nning.. is that he did not know the man wlaoinJae found grating near his sisal plax*tion, for he sitiply said I found a person grazing nerb 1 Then at the very nd of. his evidence he Bwana imioja Enosi Icas niye oliyiona d hona"-.- Eno. Lucas hiraseif did not help uatters in his e-videlibe According to. huia, the respondent found hiLl grazing near his sis&l plantation and chased h±L. saiing he should not go near his shonba, aai' Than he saw the cppe].Thtrt setting fire to the sisal, and in oroas.icznination he stated that on tAir - day nobody questioned him about the sisal I think in these oircunstances the Primri.ry Court.waentjt1ed to disbelieve the respondent and Enosi Lucas.3 Enosi Lucas may have had no reason to lie against the appellant, but the qualit-y of.his

evidence WO.5 such that the trial court was entitled to disbelieve it. For those reasons I side with the Pxdnary Court ad hold that the rezpondent did not prove his Case against the appellaut Accordingly. I allow this.-appeal sot aside the judgetient and order of.tho Istrict Court and restore those of the ELtaary Court dimissiug the respondent' c claims. The appellant will also have his cOstsL. N . fLIIA - - 1JDG .01 i98. \A\\ :•' - •. f