20170123 TZHC Mwanza

• Ef];fn$f' < ,.· ib:,elr/,d ....... I • 7- . ; ~ I , IN THE HIGH COURT OF TANZANIA .. ,·, .i ·_t \~·0 ATMWANZA CIVIL APPEAL NO. 1 OF 2014 {Originating from Musoma District Court Civil case no.19 of 2011} SIGIRYA NYANSAHO ........... ......... ................. APPELLANT VERSUS MUSABI MAGASI. ................................... RESPONDENT JUDGMENT OF THE COURT 17/11/2016 & 23/01/2017 GWAE,J The appellant unsuccessfully filed a suit before Resident Magistrates' Court at Musoma (trial court) against the respondent; he sought the following. reliefs, return of 35 herds of cattle worth Tshs. 10,500,000/=allegedly delivered in the period of 9 years when the respondent was illegally in possession of five herds of cattle, payment of Tshs. 30, 000,000/== being loss of. profit and use of the herds of cattle, payment of general damages to the tune Tshs 40, 000,000/.:... interest at the court rate in the decretal sum from the date of judg~t to the date of J~-. • full payment and costs of the case. · 1 . ' . . . ~~.l d : : : ~ ·!, A,.;:: . -"~"'·; _=-,i: ·}fl - - · ,~--- -· _·,-:. -!!'";);- ,~·:. • ~ - ; .. ' I have found it vitally important to briefly give the factual background of the matter between the parties; it is long how~ver I shall endeavor to briefly summarize the same, it is as follows; that there was accusation of cattle theft in the respondent's homestead occurred on 23/12/200·2, there were three accused persons, the appellant's son inclusive, thereafter five herds of cattle were taken not clear from either the appellant or from his son, Mwita Sigrya, the facilitators being traditional militia or traditional assembly who responded to the alarm commonly known by name of '~itongo 1 • It is further clear that the appellant was not satisfied of the act of handing . . over five herds of cattle to the respondent as return of the allegedly stolen cattle, thus instituted a civil case before Mugumu Primary Court at Serengeti (Civil Case No. 29 of 2003) where the verdict was entered in his favour, the respondent appealed at Serengeti District Court vide Civil Appeal No. 20 of 2004 where the trial court decision was accordingly reversed. It is further abundantly undisputed fact that the appellant was not satisfied . . with _decision of Serengeti District Court, ·he thus appealed to this C_ourt vide-Pc. Civii Appeal No .. 59 of 2006.whose decision was delivered on 2 ,._,·,~--·--·c'·;-a< - ' . -·,~~;:.,.. tt . $ ,_ 26/3/2009 nullifying all proceedings conducted by trial court and District Court as well as by Traditional Assembly (Ritongo) with an order that the five herds of cattle attached from the appellant to be returned to the appellant and that the purported compliance with the court order of 26. 3.2009 by the respondent made the respondent to remain with five herds of cattle for not less than nine years. th After compliance with the order of this court (Nyangarika J) dated 26 \· March 2009 by the respondent on 13th June 2011, the appellant thought regally deserved remedies aforementioned following the purported attachment of his five herds of cattle (four heifers and one bull) declared null and void abinitio, he thus fruitlessly instituted the suit subject of this judgment. In its judgment, the trial court held and I quote part of it herein under:- " .. Because the plaintiff's heads of cattle which were wrongly attached were returned following the High Court order Exhibit P.2 but does not mean that the plaintiff's son was cleared. In such } circumstances to award compensation to the plaintiff against the .. I defendant would be c;3 mockery of justice .... : Restitution integrum. · ~ in this case were five heads of cattle which were wrongly ·attached and later on returned to PWl. II 3 ---~ C'l :' Basing on the aforesaid evidence and cited laws together with precedents, I am of the convinced view that the plaintiff has failed to prove his case to the required standard of preponderance probabilities, I therefore find against the defendant none meritorious. Hence I dismiss them with costs". Dissatisfied-with the trial court decision delivered on 07/10/2013, the appellant via his counsel, Kabonde and Magoiga Law Firm (Advocates), filed a memorandum of appeal dated 30th December 2014· containing four grounds of appeal, to wit; L That, the learned senior Resident Magistrate erred in law and fact for his failure to evaluate evidence on record and find that the appella~t proved his case to the standard required in civil cases hence -occasioning miscarriage of justice. 2. That, the learned senior Resident Magistrate erred in law and fact for interpreting the High Court decision in PC. Civil Appeal No. 59 of 2006 in justifying to deny the appellant justice in this case and as such occasioned miscarriage of justice. 3. That, the learned senior Resident Magistrate erred in law and fact to ho.Id that the appellant's testimony was just nothing but a speculation. 4 - __ _,__, ·.""· 4. That, the learned senior Resident Magistrate erred in law and fact for his failure to observe and understand the basis of the appellant's claim in the circumstances of this case. · Before me, Mr. Tuguta and Mr. Laurian, both learned advocates who represented the appellant and respondent respectively, had these to say, in support and otherwise of this appeal; Reiterating the grounds of appeal contained in the memorandum of appeal, Mr. Tuguta however added that the trial court wound have found the respondent liable as claimed on the reason that the respondent admitted that each heifer was oelivering a calf yearly \herefore the appellant · evidence. was not speculative, he then urged this court to refer to page 20 of the typed proceedings, he further <!}dded that the respondent is, at least entitled to 11 herds of cattle. Opposing ·the appellant's appeal and seeking for an order dismissing this appeal, Mr. laurian in his ·submission contended that the trial court decision was legally founded as the evidence was objectively evaluated and. supported by judicial decisions. ·He· further vehemently argued that the claim? on special ·damages must be specifically pleaded and strictly proved. The respondent's counsel also submitted that there was no proof that each 5 • , ":i·, :,,. ,- ·-- .-· -.~, ·:.1 ~ ~'.::_.}_$,_.._, ~~- .:·- '"z-j k,,,M/lil year a heifer was deliver a calf adding that the order as to confiscation of I ·V five herds of cattle owned by the respondent was made by the Ritongo and <:•·; l ,_-··I \\'. .\ \ ~ not the order made by the appellant in individual capacity . :. '.\ I _'I - I The learned counsel for the respondent also submitted that the suit by the ' appellant was time barred and the same ought to have been dismissed under section 3 (1) of LLA, Cap 89. Mr. Tuguta responded to the submission by Mr. Laurian for the respondent by stating that the appellant's suit was not· time barred as the Judgment was delivered. In 2009 by Nyangarika, J and claims are based on unlawful remaining with herds of cattle adding that the cause of action accrued on the delivery of judgment of this court The appellant's advocate further· stated that there is nowhere the appellant prayed for special damages. Having briefly. summarized, the history of the case, submissions by the i - parties' advocate, I now have to determine the appellant's grounds of \ '- appeal herein above. Before I start ~etermining the grounds of appeal, it is nec~ssary to ascertain if the _appellant's case before the trial court was time barred as 6 raised by the respondent's counsel on appeal stage, this Court, it is pertinent to explain why I shall start with this objection, it is simply because it about on a purely point of law if argued and upheld by the court, it finally disposes the matter. The importance and essence of Pre-liminary objection has been stressed by courts in various judicial precedents, for instance, Mukisa Biscuit Manufacturing Company ltd. v. West End Distributors ltd. (1969) EA 696, Shahida Abdul Hassanali Kasam v. Mahed Mohamed Gulamali Kanji? Civil Application No. 42 of 1999 (unreported-CAT), In our instant matter, I am not convinced if the suit was filed out of prescribed period (3 years), it is on the other hand clear that the action . was based on trespass to property but since there was proceedings pending in court sin_ce 2003 (Civil Case No. 29 of 2003) till 2009 while this matte_r was instituted in 2011, therefore, by virtue of section 21 (1) of the Law of the Limitation Act, Cap 89 Revised Edition, 2002 the period during < ; I . which the appellant had been prosecuting his former case is excluded, for 'I. the sake clarity, section 21 (1) of the Act is reproduced herein below: 21 (1) ~n computing the period of lim'itation· prescribed for any suit, the time cluring which the plaintiff has been prosecuting,~ 7 with due diligence, another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be excluded, where the ·proceeding i_s founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is incompetent to entertain it. Now, starting with the 1 st ground which suggests that it will also answer ground 3 of appeal; in the appellant's memorandum of appea·1 it is complained that the trial court did not evaluate the evidence on record I am straight away of the firm view that this ground is to a certain decree merited as correctly submitted by the appellant's counsel, it is observed that the respondent when cross examined by Mr. Magoiga (adv) he personally testified that the appellant's herds of cattle delivered eleven calves, for better understanding, part of typed proceedings at page 21 .is · hereby quoted. -"it is not true that all plaintiff's cattle delivered on every year I - Some of them were bull and others died I I -I remember that plaintiff's cattle delivered eleven calf -there was no milking because no market to sell milk _at Musati -I did no mention that the plaintiff is thief". From the above -quoted testimony or rather appellant's respo·nse to the t ' · questio.ns paused to him by Mr. Magoiga, the learned advocate for t h e ~ I i I l . 8 ' ' l I .. appellant, it is abundantly clear that the respondent admitted to effect that the appellant's herds of cattle were able to deliver a total of eleven calves, taking into account that the standard of proof in civil cases is balance on probabilities as opposed to standard of proof in criminal cases where proof is beyond reasonable doubt in Siraj Din v Ali Mohamed Khan [1957] 1 EA 25, where the Court of Appeal of Kenya at Nairobi had this to say about standard of proof in civil cases: "The quantum of proof ordinarily required in civil litigation is not such as resolves all doubt whatsoever but such as establishes a preponderance of probability in favour of one party or the other". In our instant matter, the respondent himself admitted that while remaining with appellant's five herds of cattle, heifers delivered a total of eleve_n calves thought uncertainly said that others died. Thus the appellant's claims cannot be said_ to have been nothing but mere speculation meant to benefit out of illegal act. I Regarding the 2nd appellant's grgy,oci-of appeal on the contention that_ the trial court misinterpreted this court decision delivered on 26th March . . 2009, I have carefully_ looked at the trial court decision page 7 of the typed ,·I • • • 1 judgment and found nowhere. the trial court erroneously misdirected itself ~ - · 9 • in interpreting this court former judgment as it simply stated that nowhere it was expressly stated that the defendant's. cattle were not stolen instead the court (Nyangarika J) challenged Ritongo's locus stand to determine the dispute between the parties, thus there was no misinterpretation on . t I l ·• '·l the part of the learned trial Magistrsate as to the former judgment of this l l ·l court involving the same parties. As to the last but not least ground of appeal ( 4th ground), I am straight away of the view that the trial court did understand the nature of the appellant's claims that is why the learned Resident Magistrate spent a lot of time determining the issue on claimed delivery ( expected reproduction of four heifers) by four heifers during the period the same were in possession of the respondent, this evidence at paragraph 3 of page 9 of the typed judgment which is hereby quoted for better understanding; . " ... not necessarily each heifer to deliver after two years and if so there is no guarantee that the same is likely to deliver heifer and not bull as assumed by the plaintiff. Apart from that the plaintiff was so optimistic to the extent that assumed all heads of cattle .survived natural calam_ities such as cow diseases, drought and so"forth .... " I~ view of the quoted part of the trial ·court decision above, i_t is therefore · patently clear that the trial court ·made its best endeavors to evaluate .. l. 10 . ' .. ~ ~. -:;: ' ":':''\~ ,- \ _. .•; ct .1/: ,-;.~,:>.-~..:J,· ·~;:,. ::.;;<;4 •· ·"t~ ',J evidence before however it however it arrived at wrong conclusion as to :'l •0 I I my firm view, it was wrong to hold as it did by holding that it was unjust •l ' ' and unfair to order compensation against the respondent whose five herds of cattle were undisputedly stolen and that the appellant's son was among the suspects, that basis of its decision was absolutely wrong on the part of the trial court, for very obvious reason that no one can be held criminally liable for an offence allegedly committed by another person, be it your so"n/daughter or any relative. An offender of an offence is liable .personally in criminal cases. It is true as asserted by the respondent's counsel that special damages must always be specifically pleaded and strictly proved as has rightly and consistently been emphasized in a chain of judicial decisions, for instance in ~akori Wassaga v Joshua Mwaikambo and Another (1987) TLR 88 where the Court- of Appeal held inter alia; In general, ~nd this is I think elementary, party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; he is not permitted to set up a B . i i. new case. And in reference to appeals, it is also trite to observe that this Court cannot entertain a new ground of appeal if no ~ l• ,, ,I . •i i ' 11 . ~ supplementary record of appeal has been lodged or no application for leave to amend the memorandum has been made and granted". (See also the decision of the Court of Appeal of Tanzania in Registrar of Buildings v Bwogi [1986-1989] 1 EA 487). Besides the correct position as to the proof on claims of special damages, I . am however of the view that had the defendant now respondent not admitted that the four heifers delivered eleven calves, the finding of the trial court would be proper in that the appellc1nt did not prove reproduction of35 herds of cattle claimed to have been delivered by 4 heifers attached and put in possession of the respondent from late 2002 to 2011 as the claims on deliveries of calves by four heifers yearly would legally require strict proof and not mere assertion. As to other appellant's claims, I am not convinced in the circumstances of "this case if the respondent is to be held responsible for the act of the so called 'Ritongo as it is c;lear from the evidence on record that it was the Ritongo who issued the ·attachment order for the purpose of compensating the respondent and not the appellant. However the responde.nt should not be aHowed to benefit ca.Ives delivered by heifers wrongly attached and ~ 12 • remained in his possession for more than nine years. It is trite law that no u person shall be allowed to benefit from his wrong doings, though the respondent did not directly attach the herds of cattle but the one who had been in possession of the same, the attachment which had already been declared null and void. In the final event, the appellant's appeal is allowed to the above extent; that the respondent should return eleven herds of cattle to the appellant or Cash money Tshs. 3, 850,000/ = Each party shall bear the costs ofthis appeal and court below. It is so ordered. J.!e, JUDGE 23/01/2017 Right of appeal fully explained M. ~ . 23/01/2017 Court: Judgment delivered in the presence of Mr. Laurian (adv) for the respondent, Muhabe Sigirya (appellant's son) and the respondent. . ·,I ~ . M.~~~~~ JUDGE . 23/01/2017 13 . .- Court: Copies of the judgment, proceedings and decree are ready for collection by 5 th August 2016 upon necess___ procedures for their supply . .,(fi~'.'\: :~/01/2017 ;< "\2: :'\ ' - ',..,, t 14