Juma Muhangi vs Titus Frederick ((PC) Civil Appeal No. 134 of 1993) [1999] TZHC 491 (25 February 1999)

I .. r I .. , \ • ........... ,M ) . ' • C· IN THK HIG~ COURT OF TANZANIA AT HWANZA () CIVIL JJ'PEAL NOo 134 OF 1993 FROM THE DISTRICT COURT OF HUI.EBA. DISTRICT AT MULE&\· · IN·cIVIL APPEAL NO,. 101/92 BEFDRE G.J.- KADASSO, Esq - DISTRICT MiiGISTRi .. TE 0 ORIGJNAL CD/IL CASE NO. 30/92 OF THE PRIMARY GOURT OF MULEBA. DISICT J:..T RUKINDO Versus TTIUS FRE!)]:RICK ··-··········•ooo•••o••RESPONDENT . --- . / JUDGMENT NC HALLA, Jo • This iB an sppoal against the decision of the District ' Court of Muleba in its Civil Appeal No.101/92 in which the District Court reyerse _the finding of the trial primary court of Rukindo in a taxation oauso which w~ h.owev(>:r {ll:'@<lB<i':.W-d = an ordinary civil case No.30/9a. The brief facts about this matter are th~se, that the respondent Titus Frederick had filed civil case No.3/91 at Rukindo Primary Court against the appellant Juma Muhangi for .trespass to his land. The respondent won the suit and was awarded costs and compensation. Instead of executing the judgment and decxee in civil case No.3/91 1 the respondent filed another substant1ve civil case No.30/92 to realize his costs and damage which he was awarded in oivil case No.3/91. Very surprisingly, however,. t_h? tri_a.;t. primary court at Rukindo whic_h had awarded to the ~espondent the costs and damages in civil case No.3/91 dism:'1 sed the claim for reason that the same •••• /2.

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• . ... • 2 . - ,, had not been proved. The respondent was aggrieved, hence his appeal N•-101/92 to the District Court in which he won. The present ·, ., ·appellant then appealed to this court. ' The parties were not represented by counsel in this appeal. The respondent was duly served but defaulted his appearance. ·5o, :i; heard the appeal exparte. The appellant was present at the hearing of his appeal, but did not make any statement on appeal, instead he opted and appl.ied that his grounds of appeal contained in his memorandum of appeal be adopted, which application I readily granted. I have thoroughly oon.sidared appellant's grounds of appeal in determining this appeal. I will discuss appellant• s grounds of appeal generally• The appellant's major eomplaint on appeal is that the Agricultural officer's report (Exh A) on the damage which appellant had caused on the respondent's shamba upon trespass thereon, was not correct as to the amount of shs. 660/: value of eucalyptus trees that the appellant dallla,ged on the respondents sn.arnhe... Th.a aPJ)Qll.ant dispute-. the correctness of that amount, however, without any expert evidence to support him. So, I find, as the District Court found, that the Agt-icultural officer's report (Exh A) on the amount of damage caused by the appellant is correct. After all the appe- llant admitted to have trespassed on to respondent's shamba and damaged trees thereon. He is responsible for that damage, and the quantum of the damage cannot be faulted by this court on appeal without cogent evidence to support a different quantum of damage. The appellant also disputed the amount of costs to the tune of 10,000/=• This amount was claimed as hiring charges of a motorcycle by the respondent Jor purposes of prosecuting his suit for trespass against the app(: llant. • •••• /3. •

• 3 ·r , The appellant did not offer any evidence to the coUJ:"t which· · wciuld justify a finding thu.t that amount was arbitra.cy- and .exerbi.- tant, o,n; the wholet I am in total agreement with the findingd .isd,ori cf the wellite Distrit co.t tht the· pandkm_J ,..._ ·, ... r;l,pim for costs and damages against the I wpeiiant in_ the uni;' 6f ; . .. • • . ; . . ; . . . : . . . . . .: ! .: . ,::.</' : ~~ J,P,1660/::= was proper, and · the same wap subject <:Ff th$ ~~ne - • • • • ' l 4. ·•;••• .and decree of the same •.Rukindo Pr:i.marj-,,qow-t j.n its ci.ill ·;·;JZe· No.3/91 between.the parties •. the assessmet of those costs and . .'..,•: . ~ . ~ . 6 ought -t-0 hl;.Ya beeji ma.cl. by tha t:ria.1 .dourt in a ma.ttk .coznmonJ.y known as a taxation" ca1.1pe under a bill of costs. In fact the damages ought merely to hvelbeen realized by execution of the decree in civil case No.3/91 •. : ·The- trial ~~ court ;cld .not t00rely dismiss the olaim. on those costs and damages that they had not been p:r-oved. On this finding, this appeal has no mer:i.t, t i~----ts befeby :--· ... · ..• ·.,v·., d.ismisGeo tμ-e1y with costs. :[ uphoJ.d .and a:ff.irm the '-i:lecision of the appellate. District Court. I order accord.ingiy Appeal dismissed. Date : 25th February, 1999 Coram Hon. M.De Nchalla 1 J. Parties: Both absent Beich clerk: Mr. JOR Makandege MoD. NCH.ALLA :I_UDGE 14/1/99 Court: Judgment delivered in court at ~1wanza in the absence of the parties who did not attend. This the 25th day of February,1999 • ., !'!l. Right of appeal is according to law. I further direct that the judgment in this appeal be t:11ed on-stencil, cyclestyled 1 and copy •••••••• /4.

• ' ":f :~ :--,r~ ' .. "-'.': 4 ' !'; .;..- ·/.'t::,--,. ;4 -- :-:.:=t:-_::r/··· .-1 '. of it be sent back to the col.It't of instance at Muleba>District I • -,court where the District Magistrate stationed at tht court shall call the parties and read over and interpret to them this judgment, ahd also furnish a copy of the same on payment of the r8'4uisiw·cou:r:-t £ees. Order accordingly. . AT MWANZA -- ...... 2.5/2/1999 \4 -,.i, ,. .... I ,. ,-·-, .. . I , .. - . . ! . ' J • r ·· , (; : i Jlv,1 w /f J 111 M,D~~~i,41 JUDGE I. :! ~. ,. .. { ·" •:;.:' ·,, '"' '