20170904 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM CIVIL APPEAL NO. 132 OF 2014 (Originating from the Decision of the District Court of Rufiji at Utete in Civil Case No. 3 of 2013) NHUNE NDAKI .......................................................APPELLANT

VERSUS HALI NGUYE ..................................................... . 1 ST RESPONDENT NDAMBWE RAMADHANI ................................... 2ND RESPONDENT

JUDGMENT MKASIMONGWA, J. In the District Court of Rufiji, the Appellant one NHUNE NDAKI sued jointly and severally HALI NGUYE and NDAMBWE RAMADHANI (The 1 st and 2 nd Respondent respectively) claiming for a total sum of Tshs. 29,455,000/= itemized as follows:- 1. Tshs. 405,000 / = being the sum illegally forced to be paid to villagers.

2. Tshs. 1,050,000/= being a sum unlawfully and directly paid to the Respondents purporting it to be a fine and costs payable to the village.

3. Tshs. 4,000,000/= being compensation for his ten (10) lost cattle resulted from the defendants' trespass to the Appellant's property, eviction and for setting on fire the Appellant's premises.

4. Tshs. 24,000,000/= being compensation for loss of production for the lost t (Six) cows which were expected to deliver. The appellant also prayed the Court for the following:- 1 'i' 1. Interest at 30% of the claimed amount from the date of filing the suit till payment in full.

2. Interest at 12%, Court's rate, on the decretal amount from the date of judgment till payment in full.

3. A declaration that the plaintiff and his family are the lawful residents of Chumbi 'C' village in Rufiji District, Costs Region.

4. An order that the plaintiff and his family be resettled back to their previous residency premises at Chumbi "C" Village in Rufiji District, Cost Region.

5. Costs of the suit be met by the defendants 6. Any other relief the Court deem fit to grant. In its decision the trial court found it to have been established that the Appellant is a lawful resident of Chumbi "C" Village in Rufiji District and Cost Region. The court also found that by virtue of Sections 33 ( 1) and 33 (2) of "Sheria Ndogo za (Hifadhi ya Mazingira) za Halmashauri ya Wilaya Rufiji za Mwaka 2009 - G. N. 381" the appellant was rightly condemned to pay what he had paid for. The court however found that as the alleged detention of the Appellant's cattle could have reasonably dwell for only two days, it was unlawful for the Respondents to order for payment of a fine, detention fee and operation costs for a third day. It therefore partly found the suit in favour of the plaintiff/ Appellant and ordered that:- "The cost of village office, cost of village auction cattle pen and costs for guarding the cattle which were paid in the third day be repaid back to the plaintiff together with the costs of the suit" The Appellant is dissatisfied, by the decision of the lower hence this appeal. In the Memorandum of Appeal filed, the Appellant has raised four grounds from which he prays the appeal be allowed with costs. In order to appreciate the facts of the case let me narrate them as they can be grasped from the evidence on record. In short the facts ate that; the 2 Appellant

is a farmer and pastoralist resident of Chumbi "C" village to which the 1st and 2 nd Respondents save as the Chairman and Village Executive Officer respectively. On the 31 st of January 2013 it was alleged that the appellant's cattle trespassed on the shamba of one JUMA ALY MKIKIMA (DWl). The latter denied KUNZA NHUNE NDAKI, the Appellant's son from driving out the cattle from the shamba in which process he was attacked struck by Kunza and the cows dispersed into the other peoples' farms. The incident was reported to the village authorities and farmers became furious as a result of the incidence. Again the incidence was reported to the District Authorities and on 2 nd of February 2013 in a public meeting called at the village and attended by the District Commissioner and the District Executive Director the Appellant was ordered to pay Tshs. 1,500,000/= to the farmers being compensation for the destructed crops, Tshs 450,000/= being costs for keeping the cows and Tshs. 300,000/= being expenses for the whole operation. The village authorities were to ensure that the order was complied with. It is alleged that the Appellant was forced to move from the village and his premises were set on fire which the appellant's family had distinguished. The sums were paid in kind by providing four heads of cattle and two weeks later the appellant was issued with a Receipt by to village

authorities valued at Tshs. 1,050,000/= When the Appeal came up for hearing before me there appeared Mr. STEVENS KOSI MADULU, learned advocate representing the Appellant and the two Respondents who appeared in person. Upon being invited to argue the appeal Mr. Madulu contended that, the Appellant appeals against the decision of the trial court for failing to grant the unlawfully costs paid to the villagers and for not granting compensation for the ten (10) cows lost from the unlawful I acts of the Respondents. The Respondents had given unlawful decision which was not supported even by the Rufiji District Council. The Respondents relied on the provisions of the Government Notice No. 381 of 2009 whose enforcement is in the powers of the courts. The Respondents ought to have referred the complaint against the Appellant to the court. Instead they decided to enforce it by themselves, powers which they are deceased with. In doing so the Appellant 3 was punished without being accorded with an opportunity to be heard. He was also condemned from the evidence which did not prove the case against him beyond reasonable doubt. Mr. Madulu submitted further that it is in evidence that the Respondents had trespassed into the Appellant's land. They forced him out of it by setting fire on his Kraal. As a result ten cows were lost. This according to Mr. Madulu is a tort for which the Respondents

are liable and the appellant had no duty to prove it for the same is actionable per-se. The learned advocate prays the court that it allows the appeal for the Appellant ought to have been granted with all reliefs sought from the lower court. On the other hand the 1st Respondent submitted that in deciding the suit, the trial court had considered the evidence adduced before it. The evidence in the record does not reveal loss of ten ( 10) cows and that is why the Appellant did not complain anywhere in that regards. The 1 st Respondent added that they did not evict the Appellant from the village. The appellant had however willfully decided to vacate from the village and he made the decision in the presence of the District Commissioner and District Executive Director. The Respondents were to execute the decision of the meeting which was a result of the Appellant's own agreement on the amount of compensation to the farmers. On his part, the 2nd Respondent subscribed to what was submitted by his co-Respondent. In a short rejoinder Mr. Madulu submitted that the decision reached by the trial court was not supported by the evidence. There was no evidence adduced to the court to show the Appellant's cows had actually destroyed the crops as alleged. The Appellant was called to identify the caws at the place they were kept in the Kraal. Again there was no evidence of any government

official showing if there was assessment of the crops called to have been destroyed to justify the compensation. The learned advocate reiterates his prayer to have this appeal allowed. I have gone through the record of the trial court along with the pleadings and submissions made by the parties in this matter. It is my opinion that it is 4 not disputed that the Appellant is farmer and pastoralist resident of Chumbi "C" Village in Rufiji District and Cost Region. On the 31st of January, 2013, his cows were confiscated by the village authorities as it was alleged that they had trespassed into fellow villagers farms and caused destruction to the crops. It is not disputed that the cattle were released after the plaintiff/ Appellant had paid a sum of Tshs. 405,000/= being compensation for the destructed crops, Tshs. 450,000/= being costs for guarding the cows for three days, Tshs. 300,000/= being charges for the use of the cattle kraal and Tshs. 300,000/= being operational costs. The village issued a receipt acknowledging receipt of Tshs. 1,050,000/=. Save for the number of days which were reduced to two and therefore dropped the charges/ costs for a day the trial court blessed all which was done by the village authorities. The court did so in concurrence with the Defendant's advocate who submitted that the village authorities had acted in accordance with the provisions of Section

33 (1) and (2) of G.N No. 381 of 2009. The GN is in Kiswahili and it is Titled "Sheria Ndogo za (Hifadhi ya Mazingira) za Halmashauri ya Wilaya ya Rufiji". Section 33 of the GN is about penalty. The same reads as follows:- "33 (1) Mtu yeyote atakayevunja masharti yaliyowekwa kwa sheria Ndogo hizi atakuwa ametenda kosa na akipatikana na hatia atatozwa faini isiyozidi shilingi Zaki tatu (300,000/=) au kifungo kisichozidi miezi kumi na mbili jela au adhabu zote mbili kwa pamoja yaani faini na kifungo" (2) Pamoja na adhabu iliyotolewa chini ya kifungu cha (1) mkosaji anaweza kuamuriwa kuilipa Halniashauri gharama za uharibifu wowote aliosababisha" Going by the section, the law necessitates for trial of any person contravening the provision of the law. It attracts for such a person to be arraigned before a court of competent jurisdiction with an offence where he shall be accorded with an opportunity to be heard. That a court of competent jurisdiction cannot in my view be the District Commissioner, the District 5 Executive Director, the Village Chairman and the Village Executive Officer as it was purported to be in this matter. As such those District and Village Authorities were not mandated by the law to hear to complaints, assess the damages, find the Appellant liable and order for compensation, fine and other charges against the Appellant. As such all orders made by the

Administration arm of the state in this matter were unlawful. What was done by the authorities was null and void and the trial court ought to have found it as such. As the court did not do so, this court nullifies the orders made by the Respondents and the decision of the court blessing them. The Appellant should be refunded the money paid as compensation to the alleged complainant farmers, and that received by the village which amounted to Tshs. 1,050,000/= The Appellant had claimed for the lost cows. I have considered the adduced evidence. The evidence is so ambiguous to prove the claim. It is just an allegation that the appellant had lost his ten cows. Section 4 (a) and (d) of GN No. 381 of 2009 provides for the duties/and obligations of the pastoralists. The Section reads as follows:- "4. Kila mfugaji chini ya Sheria Ndogo hizi (a) Atatakiwa kufuga idadi ya mifugo kama itakavyoamriwa na Halmashauri. (b) (c) (d) Atatakiwa kuwa na kadi ya mifugo itakayooyesha idadi na aina ya mifugo (e) - (k) .... In evidence the Appellant did not show how many cows he had in total prior to the alleged trespass. He did not also lead evidence to the court showing how many cows he was remaining with after the incidence to establish the loss alleged. As there was no such evidence I find the court was justified when it dismissed the claim for compensation for lost of ten cows. 6 In light of what is discussed above, this appeal is partly allowed. It is allowed only to the extent that the sums of money paid for compensation, charges and costs as shown herein above should be refunded to the Appellant. The later should have costs in this matter. Dated at Dar es Salaam this 4 th September, 2017. cH· E. J. Mkasimongwa

JUDGE 4/9/2017 7