Marko Kipeta vs Makoye Machia (PC Civil Appeal Number 50 of 1998) [1999] TZHC 425 (10 December 1999)

t .... IN THE IITGH COURT OF TANZANIA .. :· (PC) CIVIL APPEAL NUMBER 50 O;F 1998 ',, (Frbm the decision of the District Court . of .sumbawanga in ·Civil . .Appe.al No,.15 of 1998 and Mtowisa Primary\ Court Civil Case No.56 of 1997 . ,, ·t·· '' . . ' MARKO KIPETA •• , •••••••• .- •••• -~ • •• •• · ••• o •••• o ,/¼!:rJELLAl\TT j· .,. ' • • ,· MAKOYE M.ACtITA ••••• ~ •••••.••• , ••• .- ~ -~ .•••••• RESPONDENT . ' . From the neutral testimony of PW3 January Ohapaulingo who is the leader ·of the sub-vi.+lage (ki tongoji) · a:i::-ea of the respondent Makoye Machia. and himself he respondent infront of . ,i 5 ott vill_agers confessed that hisi .cttle_' destryoyed_·. te • cassava plantatiop of the· appellant Mrk Kipeta at Mtowisa V. I '1 • v.illage, Sumbawanga District. The re,spondent :paid shs- 4090/= as· herdi~ costs to PW2 Gervas Iv'is..1lamba who had· caught the :l: cattle grazing upon the cassave farm of the app:?llant ,and ~ad taken them up to the police and kept watch of t·1.3m until the owner came to retrieve them"' The sh1:;,4,000/= was paid for, sa::6e keeping o.f. the cattle and not for compesating. the 9-~stroyed . . . ... . ·•··· : · ·no ~· crop. · -The same W2 ha crops of bis. own. destroyed 2.nd in the •

• 2 vicinity only the cass,_YE\ cr9;p .. of the appe 11ant was :pr-0¥00 by the Agricultural ... Qfficer and _:9tp.e leaders to have been destroyed. by t.~ .. ca,ttleo, . . ·. ' .. · .. , . . ·. But; PVV2 hile; : te sti•fng deni..ci to _know anythi about the '•.· cattle and destroyed crop~ He denied even having been paid the Ear.lter' ·on 7/10/97.· and· ·on 8/10/97 ·the' said PV/2 Gervae . • :•. t ' Msalamba had told PWl, the p·olice and BW3 t.o have caught the . r cattle of the re'sponden·t destroying the cassave farm of PWl and the owner of the cattle con:fes.sed·. that indeed his cattle caused damage to the farm produce· of the appellant. What PW2 did in court by denying to know anythine about this • I :•,,,. • \ --: .' . · t:· · eirlier episode amounted to a retraction of his . - _ . .,,,. true actions of ·_ . . ·. I :. . ' . ' witnessing :the cattles, destructi9n f the C8(]Sava crop of_PWl. rt was an useless attempt to compound the damage. done ·by. PWl cattle to the complaiant. (PWl)/appe_llant. The same. restracted was edence was. quite true and /-: _co:rroborated by the confession of the respondent who too retracted to have destruyed the cassava .· farm of PWl. He testified as DWl that his cattle destroyed the peripheral farrn of cassava.of PW2.hl:mself6 But PW2 denied in cot that any destru9tion was done to him. · . . •· . 5!he retracte.d confes.sion of DWl the app.ella,.1.t .has_ been •. .· :, • . . I· • . . . cor;roborated qy the e. . .yiden;ce _of PW3 whq wi tness~a. l:>oth the ' ,,I. • •' • • • • confession of the respondent and the· admission of PW2. There is . ' •••..• /3 •

f . .: .. ·:-= ,:.: . ,;: .'i.-:- .: ' .• .:. . . '• • • ~ • ~ ;:" . ,. ,.( • .r - ; ••• . . ,·~ : I ,t' y ,-., .• . . '. 3 ·'• al!;3o the 0orroboretion of exhibit A wlμch. is the report of the .agricuJ.t ::ral 'officer _who wilb.:hessed the farm of ca5sava of PWl . ::. . · .. ·• ... .

destrqye t up to the t:n~.G of shs-64,000/=. ·. Th'..s·is vvhat was properly held by.the trial court of Mtowisa Primary Court by the· learned Mr- Chaupele (PCM)· si ttine; with I• the tvn gentlemen assessors J; Ulnya and M. Ntine. But the District Court of Sumbawanga presided over by the learned Mr. lVIwaka:.:,inga (DM) q:uashed the findings of the Irrimary court and discharged the respondent from any civil liability on reason that the key witness Gervas did not retify. This was an finding did testify as PW2 erronous; ;- c· for Gervas Msalarnba although his testimony was I . . , ' I a retraction of all t,hat he witnessed on 7/10/97 and 8/10/97 as explained above t • :-· In this a:ppeal both parties were ra_presented by advocates with the learned Mr. Materu (Adv~) repr~_senting the, apellant • I •• . _.. ,I and the learned Tu'Ir. Mkumbe (,Adv-) presenting the ·respondent . the doubts advanced by the learned Iv'Ir. 'Mkumbe Advcate for respondent clouding the identity of· the cattle which destroyed the cassave of the appellant after PWl retracteci his evidence a.re'. c.;.eared by other ndependent and corroborative eviden:e of PW3 and Exhibit· .A. The presentation of the learneC:. Tuir. materu Advocate that the decision of the trial court was the proper one is quite valid~- The holding of District Court quashing the decision of the

4 primary court is hereby quashed, •' The decision of the Primary is Court reinstated. he cattle of the .respondent destroyed the ./ . r crop of the appellant. Makoye rJachia is liable for the damages done by his cattle to the cassave cr:op .of Marko Kipeta to the · • entire sum sued for at shs64,000/=~ This appeal is allowed with costs here and in lowe·r courts. ,10/12/99 -aoram: Hon. Mwipopo, J. '\ !'·-/~~,- E.L.K. lVIWIPOPO JUDGE 10.1299 Appellant: Marko Kipeta - Absent Respondent: makoye Machia - pre sent in per-son B/C: rlirs. Kasubiri ELKIW ATM' lima JUDGE 10/12/99