Loiludie v Mbayu and Others (PC Criminal Appeal No. 9 of 1999) [2000] TZHC 669 (23 June 2000)

68 TANZANIA LAW REPORTS [2002JT.L.R. A In the result, I do hereby grant to the applicant leave to appear and defend the suit unconditionally. The written statement of defence should be filed on or before the 27 June 2000; reply if any, on or before 30 June 2000. Mention on the 4 July 2000. Costs to be in B the cause. It is accordingly ordered. c PETER LOILUDIE u MEYAN MBAYO AND OTHERS HIGH COURT OF TANZANIA AT ARUSHA D (Msoffe, J.) (PC) CRIMINAL APPEAL No. 9 OF 1999 E (From Arumeru District Court, Criminal Appeal No. 25 of 1998, originating from Enaboishu Primary Court, Criminal Case No. 506 of 1997) Evidence - Identification — Identification of dogs at night — Need to adduce p evidence to show whether conditions allowed for proper identification. The respondents were convicted of an omission to take reasonable care of their dogs before the Enaboishu Primary Court. The dogs were said to have bitten the appellant ’ s cow to death at night. They appealed to the District Court of Arusha where their G appeal was allowed. The appellant, dissatisfied, appealed to the High Court. The contentious issue was the identification of the dogs in question. Held: (i) The evidence was not sufficient to establish conclusively that the dogs which the appellant saw that night belonged to the respondents; H (ii) Since it was dark, more positive evidence of identification should have been given by the appellant, especially whether the conditions that night allowed for proper identification, such as whether the torch light used was bright enough to allow for correct identification, whether the dogs had any special marks or whether he was so familiar with them as not to mistake them at any time.

PETER LOILUDIE v. MEYAN MBAYO AND OTHERS 69 Appeal dismissed A Statutory provisions referred to:

1. Penal Code Chapter 16, section 210 Mrs Neema Joseph, for the Appellant B JUDGMENT (Delivered 23 June 2000) C Msoffe, J.: In the Primary Court at Enaboishu, Arusha, the respondents were convicted of an omission to take reasonable care of their dogs. The charge was preferred under section 210 of the Penal Code Chapter D
2. They appealed to the District Court at Arusha where their appeal was allowed. The appellant is dissatisfied and hence this appeal. The appellant ’ s case at the trial was that on the night of 10 December 1997 he was nursing his cow which had just delivered a calf. At around e 1:00am he was exhausted and retired to sleep. In his absence, the respondent ’ s dogs came in and bit the cow to death. He managed, however, to wake up in time, chase and identify the dogs in question. The respondents defence was, inter alia, that there was no strong F evidence of identification of the dogs. The respondents were disbelieved and hence the conviction and sentence of a fine of TZS. 5 000 each or four months imprisonment in default. An order for compensation of TZS. 350 000 for the cow was also made against them. G In the appeal to the District Court, the said Court took a different view. It opined and held, inter alia that the evidence of identification was not only wanting but it was not upon the respondents to take charge of their dogs at that odd hour of the night. In the petition of H appeal there are a total number of six grounds of complaint. Briefly stated, however, the grounds centre on one general point i.e. that it was wrong for the District Court to hold that the evidence at the trial was insufficient to ground a conviction.

70 TANZANIA LAW REPORTS [2002JT.L.R. A In dealing with the appeal, I invited input from the state attorney as amicus curiae. Accordingly Mrs Neema Joseph, learned state attorney appeared and filed a written submission. In her view, the evidence at the trial established the case against the respondents B beyond reasonable doubt. She has specifically submitted that there was enough evidence of identification of the dogs by the appellant on the night in question. With respect, I do not agree with her as I shall try to demonstrate hereunder. c I propose to deal with the appeal generally as follows: admittedly, a decision of the case depended on identification, specifically whether the appellant identified the dogs that night to be those of the respondents. According to the appellant he identified the dogs. With respect I do D not agree. It was quite possible that he knew the dogs to belong to the respondents. But this was not the crucial point in the case. The point was whether he put in sufficient evidence to prove conclusively that the dogs he saw on that material night belonged to the respondents. E His evidence on the point simply ran as follows: ... nikiwa na tochi nikamulika, na mbwa wawili wakakimbia, mmoja wa kiume wa mshtakiwa 1 na mmoja wa mshtakiwa 2... With respect, this evidence was not sufficient to establish conclusively that the dogs which the appellant saw that night belonged to the respondents. Since it was dark, one would have expected to see more positive evidence of identification by the appellant especially whether the conditions that night allowed for proper identification. For instance, G the appellant was expected to say whether or not the torch light was bright enough to allow for correct identification, whether the dogs had any special marks, whether he was familiar with them as not to mistake them at any one time etc. In other words, it was not enough H for him to say the dogs belonged to the respondents without more. It also appears that the appellant believed the dogs belonged to the respondents, because after he had seen them that night they ran towards the respondents ’ homes. In my view, that was not sufficient proof I that these were the respondents ’ dogs for it was still possible that

NBC HOLDING COPRORATION v. HAMSON ERASTO MRECHA 71 the dogs he saw belonged to some other people and not necessarily A the respondents notwithstanding that they ran towards the said respondents ’ homes. For the above reason, the appeal is dismissed. --------------------------------------------------- B NBC HOLDING COPRORATION v. HAMSON ERASTO MRECHA c COURT OF APPEAL OF TANZANIA AT DODOMA (Ramadhani, Lubuva and Lugakingira, JJ. A.) D CIVIL APPEAL No. 35 OF 1995 (Appeal from the order of the High Court of Tanzania at Dodoma, Mwalusanya, J., dated 12 December 1994, in Civil Case No. 10 of 1994) E Contract - Exeption clauses - Contract contains an exemption clause - Whether exemption clause in a contract is ambiguous — Construction of an exemption clause. r p Banking - Banker exempts himself from requirement of giving notice - Exemption does not extend to cover liability for injury to customer — Requirement of notice in banking practice. Damages - Special damages - Party claiming special damages without proof of damage suffered - Whether reasonableness can be basis for awarding special damages. Damages - Special damages - Party claiming special damages without proof of damage suffered in businesses that have no connection with the purpose of the overdraft facility - Whether such claim may be entertained. The respondent was granted an overdraft facility of TZS. 5 000 000 by the then National Bank of Commerce. According to the agreement the facility was to commence j