Marko Kipeta vs Makoye Machila (PC Civil Appeal Number 50 of 1998) [1999] TZHC 382 (10 December 1999)

/ I ' -( ."' '., ; .,. •\ ''. I , .. \ \ .. ,,, IN THE HIGH COURT OF TANZANIA (PC) CIVIL APPEAL Nur,rBER 50 OF 1998 {From the decision of the District Court of Sumbawanga in Ci Vil Appeal No., 15 of 1998 and Mtowisa Primary Court Civil Case No. 56 of 1997 Before: E.J.B. Mvmks5.nga, Esq. D/M) MARKO KIPETA •••••••••••••••••••••••• · ••••• A!i.?ELLAWT VERSUS MAKOYE MACHCA ••••.•••••• , ••••••••••••••• · .RESPOND'EN'.l! JUDGEt'.JENT --..... ... J.. •• __ •, From the neutral testimony of PW3 January Ohape4u1ing~ .. who is· the leader of the. sub-vill:Jge (ki tongoji) area of the respondent Makoye Machia and himself the repondent infront of 5 other villagers confessed that hi_s cattle destryoyed the cassava plantation of the appellant Mark Ki1 :.,ta at Mtowisa village, Sumbavianga District. The resp:mden u paid shs·~ 4090/= as herding costs to PW2 Gervas Ilis.1lamba who h-1d caught the cattle grazing u-pon the cassave farm of the a)pellant and r.iad taken them up. to the police and kept watch of them until the owner came to ietrieve ·them.· The shs.,4000/= was paid for safe keeping of.the cattle and not for compensating the destroyed no crop. The 'same PW2 ha crops of his own destro:yed Emd in .the ·'

\ .2 vicinity only the cassave crop of the appellant was :prove-cl by the Agricultural Officer and other leadera :;to have been destroyed by the cattle,,.. .. But, PV'l2 while te stifjri.ng denied to know anything about the cattle and destoyed crop. He denied even having been paid the ! shs.4,000/= by the respondent. EatiieT on 7/10/97 and on 8/10/97 the said PW2 Genas Msalamba had told PWl, the police and PW3 to have caught the cattle of the respondent destroying the cassave farm of PWl and the owner of the cattle confessed that indeed his c;:;rctle caused damage to the farm produce of the appellant what PW2 did in court by denying to know anythine about this. eir1ier episode amounted to a retraction of his - ,_1 true actions of / ' ' ' witnessing the cattles destruction of the cassava crop of PWl. It was a:. useless at:tempt to compound the da.mage done by .PWl cattle to the complainant (PWl)/appellant. The sem.a restra-cted was evidence was quite true and l corroborated by the confessio!':1, o,f the respondent who too retracted to have destroyed the -cassava - farm of PWl. He testified as DV!l that his cattle destr:-oyed the peripheral farm of cassava of P'N2 himself. But PW2 denied in court that any destruction was done to him. ~he retracted confession of DWl the appellant has been cqrroborated by the evidence of PW3 who witnessed both the ,. confession of the respondent and. the admission of PW2. There is ...... //3

' 3 ~ J ~ t:.. ;t ~ . . :, ·• also the corroboration of ex1ti.bi t A which: is the report of the ·- i~ agricultu.ral officer who wilhn.essed .the farm of caas2.va of PWl ✓ destroyed up to the tu;.:.e of shs:64,000/=. This is what was properly held by the trial court of Mtowisa Primary Court by the learned mr ~ Chaupe le (FCM} si ttine; with the two gentlemen assessors J~ Ulaya and M. Ntine. But the District Court of Sumbawanga presided over by the learned Mr. Mwakasinga (DM) gashed the findings of the primary court_ and " . -· discharged the respondent from any civil liability .on reason · that the key witness Gervas did not re.tify •.. fius was an finding did test,£fy as PW2 erronous;.: c for ,Gervas Msalarnba although_ his testimony was I . a retraction of all that he witnessed on 7/10/97 and 8/10/97 as explained above In this a:i_.1peal both partie-s were represented by advocates with the learned Mr. Materu (Ad.v ) represntig the appellant and the learned rnr. Iifllcumbe (Adv~) representing the respondent the doubts advanced by the learned rvrr .• Mkumbe .Advocate for respondent clouding the identity of the cattle which destroyed the cassave of the appellant after PWl retracted his evidence are c.ieared by other independent and corroborative evidence of PW3 and Exhibit A. The presentation of the learned Mr. 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

4 primary court is he re by quashed• The decision of the Primary is ·Court reinstated. ibe cattle of the resp_ondent destroyed the I . . crop of the appellant. Makoye rlachia is liable for tho damages done by his cattle to the cassave crop of Marko Kipeta to the entire sum sued for at shs;64,000/=• · Thi~, a:ppeal is allowed vii th costs here and in lower courts. Ooram: Hon. ,Mwipopo 1 J • \ ---t...----._ .,,,-...,..- /"'--~~-.......... / ( -.J . --- ....... ' E. L.K. 'MWIPOPO J1JDGE 10.12,,99· .Appellant: Marko Kipeta - Absent Respondent: T-Takoye Machia - present in person B/C: Mrs. Kasubiri . ~~t.:; Judgement delivered in the absence of ·the appellant. , .· (..· ,., ..._, , ... i ¥• .• . ,:s. ,.,lli.strictt·-'Registrar to inform him of this results;. c.:.··, .. ·· r .. \ , ELKIVJ/ ATM' lima~ JUDGE 10/12/99