Juma Muhangi vs Titus Frederick ((PC) Civil Appeal No. 134 of 1993) [1999] TZHC 493 (25 February 1999)

'I' ' ,(' .. f IN THE HIGH COURT OF TANZANIA AT HWANZA (Fe_) CIVlL APPEAL NO., 134 OF 1993 FROM THE DISTRICT POURT OF MUIEllil. DLSTRICT AT MULEBA · nrCIVIL APPEAL NO .. 101/92 BEFORE G.J o KADASSO, Esq - DISTRICT MAGISTR1 ... TE 0 ORIGINAL CIVIl CASE NO. 30/92 OF THE PRIMARY COURT OF. MULEBA DISTRICT J:..T RUKINDO Versus TITUS . FRED.IRICK O • o • • •. e • • e ♦ • e ~ a o D O e e • o • .. RESPONDENT JUDGMENT NCHALLA., JD . •. This is an appeal against the decision of the District Court of Muleba in its Civil Appeal No.101/92 in which the District Court reversed the finding of the trial primary court of Rukindo in a taxatio:c cau.so. "1hich 1'13-'- howeife:r pro<:Bet10d :;.R an ordinary civil case No.30/93. The brief facts about this matter are these, 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 decree in civil case No.3/91. 1 the respondent filed another substantive civil case No.30/92 to realize his costs and d.a,'llage which he was awarded in oivil case No.3/91. very surprisingly, however,_ t_h,.;_ tri_~ primary court at Rukindo which had awarded to the·cespondent the costs and damages in civil case No.3/91 dism:i: .sed the claim for reason that the same ..... /2.

2 had not been proved. The respnde_nt was aggrieved, hence his appeal Ne.101/92 to the District Court in which he won. The present appe_llant then appealed to this court. The parties were not represented by counsel in·this appeal. Th.a respondent was duly serve_d but defaulted his appearance. So, 'r heard the appeal exparte. The appellant was present at the h0aring of his appeal, but did not make any statement on appeal, instead he opted and applied that his grounds of appeal contained in his memorandum of appeal be adopted, which app1ication I readily granted. I have thoroughly ooiciared appellant's grounds of appeal in determining this appeal. I will discuss appellant's grounds of appeal generally. The appellant•s major complaint on appeal is that the Agricultural. officer's report (EXh A) on the damage which appellant had caused on the ~e:spondent•s shamba upon ~spass thereon, was not correct as to the amount of shs. 660/= value of eucalyptus trees that the appellant drunaged on the rGS)?Ond.Gnt•s slla.IJihe.. The i:,.ppQ1l.ant dis;putes : . . the correctness of that amount, however, without any expert evidence o support him. So, I find, as the District Court found, that the Agricultural officer's report (Exh A) on the amount of dage caused by the appellant is corr?ct4 After.all the appe-. llant admitted to have trespassed oh to respondent's shamba and damaged trees thereon. He is responsibie 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 9 000/=• This amount was claimed as hiring charges of a ' motorcycle by the respondent· /or· purposes of prosecuting his suit for trespass against the app:: llant. ' -;,,-. • •••• /30

~ 3 .. The appellant did not offer any evidence to the court which would. justify a finding tlu..t that amount was arbitrary and xi,rb:L,.; on the whole, I am in·total agreement with the finding and· . . deis"jon: . .o:C.the ppel}ate. District oow:-t 9 the.st: the respaildent•e ... ' , . ... ' t· Wm .for costs and drunages against the appellant in the amount of , ,. -: k.. 10 1 660L w proper, and the. ~~e was subject <1:f tM dIi+. · and decree of the s~ · '.Rukindo Pr:imo.r:r Cou:rt j.n ils. civil .case No.3/91 between the· ;parties. The assessment of those oo:s,;s. and . . .. . 6 OQght to btl-'7'"0. beo. made, by the t:t-:i.al court in_ a :·ui.attei- .coznmonly known ~ a taxation cause under a pill of, osti:i In fact l • • '•j the damages O'.l,lght merely to have been realized by execution of the ·' decree in civil case N9.3/. The trial pr:imacy-.-·cow•t· bould. .riot . ·:. . . . ly dismiss the cW-m. OJ; t'l.iose oosts and damages that they had not been proved. On this finding, this appeal has no merit, the sam&·ts heeby d:i..smi1weci Q%'1.tire1;y with oosts. I up})o)..d .nd af£i.rm the dec:i.s::i.o.tl of the appall.ate Dist--r:t.ot Court,. I order -°?aingly. Appeal dismissed. Date 25th February, 1999 Coram Hon. M.De Nchalla, J. Parties: Both absent Be•ch cler: Mr. JOR Makandege MoD. NGHALLA JUDGE 14/1/99 Court: Judgment delivered in court at :ttiwanza in the absence of the parties who did not attepd. This the 25th day of February,1999. Right of appeal is according to l~w. I further direct that the judgment in this appeal be t:rped on stencil, cyclestyled, and copy •••••••• /4"

:t' 4 .... -· r "'· ·.. . - '·• ...; ··of it be sent back to the court of instance at Muleba District :Gurt, whe the District Magistrate stationed at that ?ourt .-,i shall call the parties ai;id read ov.er and interpret. fo them this • " - ·<judgment, and also furnis·h a copy of the. same on payment: of the ·.) . .. - ' . . ~ . ' requisiw·court fees. Order accordingly. AT Jl,'IWANZA ·•· 25/2/1999 . ,,.---- .. ·-~. ·- "' -.