19750911 TZHC Mwanza

IN THE HIGT1 COURT 0F:TANZANIA • 4T EIVIANZA. (pa) CIVIL APPEAL No. 60 OF 1975 (From the decico in of the District Court of NW anza at Mwanza in Civil Appeal No. 44 of 1973 before E,K. Mutaki, 'Eq., D.M. and Kisesa Primary Court Civil Case No. 32 of 1973) ():thij SHIGMM, LO ) APPELLM;TS. (2)MNONAcH.NJo . ' ..•,. •• versus YOHAIiA KULEN(PVIE . . . . . . . . . RESPONDENT 3uDGLnN4- tGANGA, AG J.: TIiio-èbndent sued he . u fo occasioning the losb of one of his cows and injuring four other cows. He c1aimedshs. 150/= as epensatioit for each of the four injured cowsand sh. 300/= for the lost cow. The trial court found for him and awarded him shs. 50/= as compensation for each injured coy: and ths. 300/= for the lost cow. The two appellants were therefore adjudged to pay the respondent sh. 5 6 01= inclusive of costs. On appeal, the first appellate coi).rt affi±med the decision Of the triJ. court and disissed the appeal. This is a second appeal. The evidence led in the trial court left no doubt at all that the appellants were part of a group of villagers who chased away several hordsnen. from a nearby village who took their cattle for grazing in the village where the appellants live. It was also pro -" that the appellants were among thcfirst people to boat the cattle, amongst which were the rospondenø. The respondent's claim was t1- t1 appellants should compensate him forthe injuries inflicted on his four cattle as well as for the cow which got lost when his hordsmoi •Thn away. As stated, both lower courts held that the appellants were responsible 'for the lost cow and were liable to compensate tL.' respondent. Both lower courts soem' not to have considered whether the ro o'-• pondont proved that the loser of the cow was duo' to the attack on the hordamen by the appellants. The respondent's evidence in this . • respect was that when the herdsman retunied the.cattic to his homo in the evening he discovered that one was missing. The herdsn never stated that he discovered the cow missing only after the attack on him nor that the cow was there before he was attacked. I think a more positive proof was required in this respect since t' possibility that the cow might have strayed and disappe'á.red beforc the villagers attacked the herdsmen remained open. This poosibiJJ; was never cohsidered by the trial court and I am not certain that the court would still have held the appellants rospoiiblc for the- loss of the cow if it had considered this possibility. In iaiy viev:, the respondent failed to prove within the balance of prObability tl;.'.t the appellants were responsible foi' the loss of the' cow. The only other issue for determination in this appeal is whctT 2 the respondent was entitled to be compensated for the injuries sai to have been suffered by the four cattle which wore beaten by the villagers. The respondent produced a document in the fz)m of a letter which he claimed Was written by a Veterinary Officer who cxamined the four cattle • The writer of that document noi'or gave - evidence.' Thus the document was inadmissible as evidence. The trial court however believed the rcspondcnt and his witnesses and found it established that all the four cattle had bruises on their backs. • The respondent never claimed that he suffered any loss as result of the bruises inflicod on the four cattle nOr that ho' spont any nancy in treating them. - He adnittod that those catt1ow3G alivn. There was therefore iothing, in my view, for which the respondent could be ooiponsatod. Since nono of the cattle died he could only claim conionsation if he had paid anything toviards their troaicnt or if any of than failed to carry out its dutIes, such 'as pu11in; -2- plough,as a rosult of the beatings. was no evidence that anytInnc of that sort happened. Under those circurastancos the appellants appeal to. the irt apoila..o c6urt should have been. allowed ,sinco there wore no spcial thirnages suffered by the respondent as a result of the appeflantst unla.wfiil act. For . . the reasons stated ho±öi. the tippdal j ailovzod'and the dccision'f the courts bellow arc sot aside. The respondent is not entitled to any conponsation by the pcllanto. 11th Septembor,.1975. . 4G. JUDGE -. .- 1 .. .. .ç •:. ,. •. •. .: - . - .. .. - i:- • .' . .• . '. ... . : • ,. . JI . . . .. • ... . . .• . . • . . J.J. ... C .L 4. • ç e. 14 .• r'c A •(f r e . -.- . 1 r 4 A .r ..A. :.. ..: : . : •-• . •.• ... •.