Abdul Sanga vs Samson Mwanyesye (PC Civil Appeal No. 48 of 1996) [1999] TZHC 224 (2 December 1999)

,ø. Td' T IN THE HII COURT OF TANZANIA

• -- -----.-- jp (flc) CIVIL APPEAL NO. 48 OF 1 - 996'- -. .... (F'om the decision of the District Court of Mbeya Dist'ict at Mbeya in Civil Appeal No, 75 of 1995 Oriina1 Civil Case No0 22 of 1995 of Mbeya Urban Primary court BEFORE: S • M. RUMANYIK( - ROM..) ABDUL SANGA APPElLANT VERSUS SAMSON MWANYESYE ....................... RESPONDENT The respondent Samson /o 1wanyesye sued for costs and loss of Shs.900,000/= incurred while he was sued by the appellant Abdul 8/0 Sanga in Civil Case No. 24/92 and No. 2,/1992 at Igurusi Primary Court. In both cases the respondent won over claims of being with the 15 and 36 head of cattle of the appellant in the 2 respective civil cases at the primary court level, District Court level up to this High Court's level. His los's was claimed to be in terms of failure to cultivate his paddy farm of, 18 a'cres due to being required to attend court sessions. He also claimed costs of fares to Igurusi from his village and to Mbeya District Court during the hearing of the appeal. He further claimed in the plea.ings to have once engaged an advocate, but he did not testify so when gving his evidence on oath, The trial court entered Judgment for the respondent for a reduced compensation of Zhs.7009000/= from the Shs.900,000/= claimed. The District Court of Mbeya further reduced the granted' costs and compensation to &hs.500,000/=. The appellant has nothing in his favour as concerns his liability

4.- ( 1 -2- for the costs. It was properly held by both two lower courts that he liable to pay some costs to the respondent for constantly (twice) bein'' sued for no good cause. What can be consiiered in his favour is ;ust in respect of the quantum of damages if it was justified to enter a judgement of Shs3500,000/= against him in favour of the respondent 0 Both two cases were of the same year of 1992 in Civil Cases No, 1/1992 and No. 24/1992, So, any lost paddy produce was for one year only. At the hearing of this appeal I questioned in detail how

• come he suffered loss or incurred costs of Shs.900,000/= and he miserably failed to establish such huge costs which don't make sense at all. Going by his scmt testimony he could as well have been granted only token costs and compensation for being sued twice without good cause. He said he used to cultivate only the 8 acres that is quite an exageration possibly he cultivated Ji of that acreage at 4 acres. He in. each acre got 25 bags. That too is an exageration he could have got between 10 - 20 bags because he did not say, if he was using at peanent irrigation as Mbarali flice Farm or Kapuga NAFCO .Pce Farm. Igurusi area is a direct semi-desert area and if he depended on the the scant rain and floods fromLdownstreem rivers flowing from Uwanji and Uporoto Mountains the production isn't that much assured due to uncertainties of water suppiya An average of 15 bags suffices for of this claim. He could have got a totalL6O bats of paddy at Shs.3000 1= per bag by then in (1992) it could come to lost proceeds of paddy at Shs.180,000/= (60 bags x 3000/= per bag). But that is gross earnings. There are other capital costs involved in cultivating, planting, weeding, harvesting and safe upkeep, as well as storage etc. The net profit for only which he is entitled to claim must have been hardly 14 of it at Shs.45,000/ net profit (180,000/= xj). For the advocate he paid only SbsI,50 9 0001= who ought to have '.0/3

-3- supplied him a receipt in the absence of which he could have engaged no advocate at all, or if he did, he possibly paid him quite less than that especially because it was at an appeal level and in only one appeal. Advocate's fees for this simple appeal could have been hardly 20,0001= by then.(1992) which I hold it so at Shs.20 1 000/=. From Igurusl to Mbeya he cams 8 times at Shs.500/ fare per trip it comes to only Zhs 0 8,000/=. From Uhambule village to Igurusi he went 8 times at Shs.l60/= per trip total Shs.1,280/= only0 appeal As for z he used to pay Shs.5 00/= per trip. He. made 16 trips in all at Igurusi and' Mbeya which amounts to Sbs.2,560/= (16 times x 160,/=). Total costs are only Shs.75,780/= (Shs.45,000/= + 20 1 000/= + 8 1 000/= + 1,280/= + 2,500/=). I therefore reduce the costs and compensation due to the respondent farm Shs.500,000/= which is unbacked -by any' evidence at all to Shs.75,780/= only. This appeal is par1-1'J d without costs because either party has partly won an d'p-artly lost ch party will bear his own costs. 1 f \ '1 I : E. L. K. YIWIPOPO

JUDGE 2/12/99 Date: 2/12/99 Coram: Hon. E.L.K. Mwipopo, J. Appellant: Absent Respondent: Absent 13/c. Kosam COURT: Judgment delivered in the absence of both parties. District Registrar to inform them accordingly. EI,L.KO MWIPPO JUDGE 2/12/1999 Th