roketi pastory vs ruben nyanda 2009 tzhc 41 28 april 2009

IN THE HIGH COURT OF TANZANIA

AT MWANZA (PC) CIVIL APPEAL NO. 35 OF 2007 (Arising from the District Court of Magu at Magu in Civil appeal No. 75 of 2006 Originating from Mkula Primary Court Civil Case No. 110 of 2005) ROKETI PASTORY........................APPELLANT

VERSUS RUBEN NYANDA.................... RESPONDENT

JUDGMENT 5/8/2008 & 28 /4/2009 NYANGARIKA, J; The appellant lost a suit against the respondent at Mkula Primary Court for a claim of Tshs. 61,450/= for crops destroyed at his farm by the cattle of the respondent. The appellant unsuccessfully appealed to the District Court of Magu at Magu (hereinafter referred to as "the first appellate court"). It is from the Judgment of the first appellate Court that the appellant has appealed against to .this Court. The appellant has registered seven grounds of appeal in his memorandum of appeal and the respondent had also filed a reply to the memorandum of appeal. When the appeal come for hearing both parties were unrepresented and actually had nothing to add or elaborate in this appeal but relied only l to what they have stated in their respective memorandum of appeal and reply to memorandum of appeal. According to the record of the Primary court, the appellant was claiming against the respondent to be paid a total of Tshs. 61,450/= being compensation for destruction of his Maize, paddy and beans crops. On the first and second grounds of appeal, the appellant said that both the Primary Court and the first appellate Court gave wrong decisions because there were no issues framed. The ground of non - framing of issues was not one of the grounds of appeal before the 1st appellate Court and therefore this Court has no jurisdiction to determine

it. The 3rd, 4th, 5th, 6th and 7th grounds of appeal can be combined to only one ground of appeal that both the 1st appellate Court and the Primary Court misdireled them self on fact by holding that the appellant has not proved his claim on the standard required by the law. Having carefully gone through the evidence on record and considered the same on these grounds of appeal (3, 4, 5, 6 & 7) but I have found that there was enough evidence that the cattle of the respondent entered to the farm and destructed some of the crops there in despite the fact that most of them have dried up. These facts can be gathered from the testimony of SMI, II, III, IV even SU1, and SU II, from the proceedings of the Primary Court. The respondent is recorded while testifying in the Primary Court in part, on page 3 of the proceedings as follows: "...kwe/i mazao yalikuwa yameharibika na ukame na mifugo wengine walikuwa wakipita sehemu hiyo..." In English: "It is true that the crops have dried up because o f drought and other livestock were passing on the same place"(m y own interpretation). SU II who was called by the respondent as his witness is recorded by the Primary Court on the proceedings at page 4 testified, in part, as follows: "... Kutokana na ukame wa mwaka huu yalinyauka na mifugo ikala mabaki hayof Mdai alipokuta mifugo ya Mdaiwa akichunga sehemu hiyo..." In English: "... Because o f

drought this year they dried up and the livestock ate the residue. When the Plaintiff m et the defendant's livestock grazing in that same area..." (my owh interpretation). The first appellate Court held that there was contradictions on some of the testimonial of witnesses because some of them said that the crops were destroyed by sun but another said that only paddy crops was destroyed in the farm. With due respect, there is no such contradiction as pointed out by the First appellate Court because the totality of the evidence lead to the same fact, that at least some of the crops especially paddy were destroyed by the respondent's cattle in the farm. The burden of proof in civil case is not very high as suggested by the First Appellate Court or the trial Court. It is only on a balance of probabities. The burden of proof beyond reasonable doubts is only in criminal cases. I my view, save for the appellant, the respondent had failed to prove his case, albeit, on a balance of probability in the circumstances of the case. The first appellate court also held that no one came before the trial court to say that he saw the cattle in the farm. With due respect to the 1st appellate magistrate, that was not an issue before the trial Court. The only issue before the trial Court was whether the Farm where the crops were planted and destroyed belonged to the appellant or his sister

Helena. After the appellant had testified that he witnessed the cattle of the respondent destroying his crops in the farm on that date, that was no longer an issue before the trial Court but the only issue which the respondent and his witnesses put forward was that the farm did not belong to the appellant but his sister called Helena. The respondent did not call Helena to prove that she was the owner of the farm where the crops were destroyed. He who alleges must prove. There is also an argument raised that since the crops had dried up because of drought, the cattle of the respondent cannot be responsible for destroying the crops. In my'opinion, unless it is unequivocally admitted by the adversary, whoever alleges a fact, has to prove it, albeit, on the balance of probabilities. Even if the crops had dried up, still, the residue of such crops though dried up may be used by the owner for feeding .his own cattle or for others purposes as he may deem fit. The record of the Primary Court show that the cause of action arose on 2/12/2005 but the Primary Court visited the scene of the crime on 18/7/2006 and saw fresh crops planted there. I think there was no possibilities of seeing the dried up crops which has been destroyed after a period 7 months from the date the cause of action arose. Therefore the visiting of the Primary Court to the scene after 7 months was a tourist visit

rather than a court business. Surprisingly, when the Primary Court visited the scene, it purported to receive and record evidence SUI and SUII. All the evidence between the two contending parties was closed by an order of the same court on 28/3/2006. This is material irregularity on the part of the Primary Court. The trial Court should have only recorded what it saw when it visited at the scene and not embarking on opening again the case by allowing testimonies from parties and witnesses. Regarding the holding of the Primary Court, that, the agricultural officer who valued or /and estimated the loss was not called to testify before the trial Court, I totally agree on the finding of this point by both the trial Court and the First Appellate Court. In my view, such an exparte witness has to be called to testify although the Primary Court record show that it received the letter from the said Agricultural Officer but did not recorded if the letter was received as part and parcel of Exhibits tendered in Court or not. The Primary Court should have directed parties on the procedure of receiving such kind of exparte evidence in court for the interest of justice. The hand written record of proceeding of the 1st Appellate Court, was not typed and certified by the 1st Appellate Court and it has been very difficult or rather impossible for me to read some of the words in the hand written

record. Surprisingly, the 1st Appellate Court never bother to have the hand written record of proceedings being typed and certified before dispatching it to this court for appeal purposes. There is also no decree extracted from the judgment of the 1st appellate court and submitted to this Court with the record of appeal. This kind of laxity by the 1st Appellate Court cannot be tolerated in future and I wonder how our registry received this record without making sure that all these has been done and complied with by the 1st appellate court. The 1st appellate court is urged and warned in future to ensure that all what I have said are complied with before throwing its record to this court for appeal purposes. In this appeal, the respondent unlike the appellant has failed to prove his case albeit on a balance of probabilities from what can be gathered from the evidence in the proceedings before the trial Court. From the reasons I have discussed above, I allow the appeal by setting aside all the judgments of the two courts below and nullifying the entire proceedings of the two Court's below. I order that the case start afresh in the Primary Court before another different magistrate sitting with different assessors. Order accordingly. K. M. Nyangarika

JUDGE