20151204 TZHC Mwanza

·•· •' (911_,t U-1 (IV A-{___ ,...

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY OF MWANZA

ATMWANZA PC CIVIL APPEAL NO.44 OF 2014 (Arising from the decision of Tarime District Court Civil Appeal No. 50 of 2013 original Civil Case No.103 at Shirati Primary Court of Tarime District) SAMWEL MAGESA .. ■ •• ■ ■ ■ •••••••••• I •••••• ■ ••• I ••••••••••• I ■ •• ■ •••••••••• APPELLANT

VERSUS OKEYO MASAWA. ■■• ■ I.I •••••••• I ■ •• I ••••••••• I •• ■■ •••••••• ■ ••••• ■ •• ■ .RESPONDENT Last Order: 15/10/2015

JUDGMENT MAKARAMBA, J.: This is an appeal originating from the Judgment and Decree of the Tarime District Court in Civil Appeal No. 50 of 2013 before Hon. Odira Amworo Esq. RM. The background to this appeal briefly is that, SAMWEL MAGESA, the Appellant, successfully sued OKEYO MASAWA, the Respondent, before the Shirati Primary Court for the recovery of Tshs.1,931,000/ =, being compensation for damaged crops (maize) caused by the cattle of the Respondent. The Respondent was dissatisfied with the decision of the Shirati Primary Court and appealed it to the Tarime District Court. The appeal was allowed and the decision of the Shirati Primary Court was . overturned. The Appellant was aggrieved by the decision of the Tarime ~ Page 1 of 5 District Court and appealed it to this Court on the following three grounds, namely; 1. That the witness Wambura is the son of the Respondent and therefore could not be called as witness on the Appellant side but he said before the other people that the cattle belonged to them (the Respondent); 2. That the cattle that damaged Appellants crops in the Shamba were identified properly by Wambura son of the Respondent who admitted that the two cattle were theirs that were detained for authentication but they were many cattle; 3. That the Agricultural Officer valued the damaged crops as an expert and the trial Court concurred with his valuation and

awarded that amount to the Appellant, .the Appellate District Court was wrong to differ with the trial Court (Shirati Primary Court). In this appeal, the Appellant prays that this Court should concur with the decision of the Trial Court and allow the appeal with costs. On the 15th of October, 2015, the Respondent prayed to proceed exprate against the "° Respondent for failure to appear in Court despite having dully served on 15th November 2014 but to this date has not filed any reply to the petition of appeal by the Appellant. This Court by its order dated 15th October 2015 granted the payer of the Appellant to proceed exparte and hence this ~ Page 2 of 5 Judgment. On the hearing of the appeal exparte, the Appellant adopted the three grounds contained in the Petition of Appeal as forming part of his submissions in chief in support of the appeal. I propose in this judgment to determine all of the three grounds of appeal seriatim. On the first ground that the witness at the trial one Wambura is the son of the Respondent and therefore incompetent to be called as witness on the Appellant side and that he said before the other people that the cattle belonged to them (the Respondent), lack merits. The mere fact that Wambura was the son of the Respondent does not render him incompetent to appear as a witness to testify for either side at the trial before the Sirari Primary Court. The

incident which gave rise to the suit before the Sirari Primary Court was also witnessed by one Daniel Mseti (PW3), the Hamlet Chairperson. In the same vain one Mr. Edward Mtiwaha Muha (PW4), also witnessed how the crops were damaged. On the record of the proceedings of the trial court, it was not in dispute that, the crops of the Plaintiff had been damaged by cattle. According to the testimony of PW4, an Agricultural Officer, before the Trial Court, indeed the crops of the Appellant/Plaintiff were damaged by cattle, which damage he (PW4) had valued at Tshs.1,931,600/=. As per the evidence of one Samwel Mgesa (PW1), the Appellant, Ombuto Opija (PW2), the Appellant's uncle ("Baba Mdogo'') and one Daniel Mseti (PW3), the Hamlet Chairperson, the crops of the Appellant were damaged by the cattle of the Respondent. The cattle which were apprehended were identified by one Ombuto Opija (PW2) and one Wambura Okeyo to be that of the Respondent. The Respondent did not deny having been keeping / ~ Page 3 of 5 cattle nearby the farm in which the damaged crops were growing. According to the testimony of PW3 at the trial court, on 15/11/2013, the two heads of cattle of the Respondent were found in the farm of the damaged crops of the Appellant. After being identified, the apprehended cattle were handed over to Wambura Okeyo, who also recognized them to be of the Respondent. In my considered

view, on a balance of probabilities the apprehended cattle were sufficiently identified. I should point out here that, the standard of proof in civil litigation being on a balance of probabilities, this Court has only to look at the evidence on record to satisfy itself on the fact that indeed the occurrence of the event complained of, that of crops in the farm of the Appellant being damaged by the cattle of the Respondent was more likely than not. The critical question for determination here is whether on the evidence on records to whose side the balance of justice tilts. In the present case I am of the firm view that, on the evidence on record the balance of justice balance tilts more in favour of the Appellant such that the case of the Appellant has been proved on a balance of probabilities, which is the required standard of proof in civil cases. It is for the above reasons that, this Appeal succeeds. it is hereby allowed. The Judgment and Decree of the Tarime District Court in Civil Appeal No. 50 of 2013 is hereby quashed and set aside. The decision of the Shirati Primary Court in Civil Case No.103 of 213 awarding Tshs.1,931,000/= to the Appellant as compensation for the ~ Page 4 of 5 damaged crops (maize) caused by the cattle of the Respondent is hereby R.V.·MAKARAMBA

JUDGE Page 5 of 5