Strack Nyambi vs Twiganile Mwaibingu (PC Civil Appeal No. 23 of 1997) [1999] TZHC 394 (12 February 1999)

M(?SHI, J. IN THE HIGH COURI' OF TANZANIA AT MBEYA (Per crvn., APPEAL NO. 23 OF 1997 {from the decision of· th/ District Court of _ Rungwe at Tukuyu in Ci vi:l· Appeal ·No .51 , of 1996 · Before: D.D. Komba - Dist1;'ict Mag:i.strate) .$TRACK NYAMBI •••••••••••••••••• APPELLA,NT VERSUS TWIGANILE MWAIBINGU oooooooo•ceo ;, 1'· ... ·· RESPONDENT. ---.....-------·- JUDGMENT The 'respondent filed a suit against' the a:ppellant before Kiwira primary court· in Rungwe district claiming shs.98,710/= being expenses he.had incurr'ed' -· in corinectib'ri' with Civil Case No.35/95 th - appellant had filed against him before the primary court of Mtula in Il~:J'e:·.district. The respondent lost the suit 1 h1t .hts appea),, ,to the district 'court of RungW'EP¼ru:f a!llowed; c" Tli'e" ,,: ' ,,· appellant felt aggrieve, .hence this appeal. ;-,.,,,-. I were to deliver jud:gineiit in this appel on 4.12097, but it occurred to me in the ctnirse of ft prka:ration that' a persal of the Mtula primary ,. court Civil Case No .. .35/95 • court file was necessary. So I called for that court case file. After a long lapse of time the Ileje district magistrate incharge notified this court in-writing that the required Mtula primary court case file was lost in the hands of the trial magistrate, now a deceased person. Fortunately though, a certified copy of the Mtula primary court case proceedings is in the Kiwira primary court case file. So I had to proceed with the preparation of this judgment which I deliver.today. The suit the appellant preferred against.the respondent before-the ": 5::;, -. --.hi,:)·· ···- :. pr.imary_ c_ourt of Mtula was for a piece of land.' Be.fore ,the suit was heard· 1 '-';.~ ~1 •• , • ,, the trial court found out· that. it iackeq.-. jurisdiction tp try the suit on account of that cause of ac,~ion had arisen in Rungwe district. The trial court, therefore, ordere'd on 6. 9 o 95. that the appellant sl').0;1ld file the suit ••o••e•••• /2

·.- 2 - before a primary court within Rungwe district. This was, however; after the respondent had entered three appeara.rics before Mtula primary court for the case. The three appearandes were on _1 695, 10 •. 7.95 and §.9.95. The respondent claimed he had to travel from Mbeya to Ileje district and incurred expenses in connection with accommodation, food and bus fares., Hence the suit before the primary court of Kiwira in which the responderi:t produced his expenses receipts and bus fares. ; :.!.~~:-.;..,.' .: .. ' The appellant, however,,, did. no.t.insti_t:ute. a suit in a" pr,imary court within Rungwe district as directed by Mtula primary court. He instead instituted the suit before the Land T:r.ibunal for Rungwe district. This was on 26.9.95, and it would appear that the Tribunal was yet to finalize ~~e __ ,.:'?'.-/ matter at the time this appeal was preferred. The Kiwira primary court unanimously dismissed the suit in ibirentirJtf< on account of that the receipts and bus fars bore· dates which did :'not tally. with the dates the respondent entered court appearances before Mtula primaryt . . . court. The receipts and bus fares, therefore, were held in suspici'on and ' rejected. The Kiwira primary court however conceded that the respondent ·ii': had entered appearances· before Mtula primary court.· The distriqt, ?Ourt of Rung,.,.re, however,· held a different view. Without touching upon the fact that the dates of court appearances ·-did not match with. , those of the receipts, the district court held the receipts to have been genuine and awarded the claim in its entirety. With respect, I -8.Il) satisfied that the Kiwira primary court was justified in holding the receipts and bus fares produced_by the respondent in suspicion. They were clearly a manufacture. They did not by far relate to the established court appearances made by the respondent before Mtula primary court. They relate to trips made to Tukuyu. The certified copy of the proceedings established that only three court appearances were entered by the respondent. ,!., <',, The first was on 1.695. The second was on }0.7.95, and the third was on 6.9.92• But the recipts for accommodation and food bore dates in the .•-~ • '• e • o o o • /3

.... 3 - months of January, f\ugu.::rt, November and pecember 1995. Only one for shso1 1 8000/= bore the date of 69.95. It was worse with the.bus farese None of them related to the three court appearances madeo They bore dates in the months of :february, Au&:uet, !'!£Y~~, December 1995, and one in the month of Januar;z:: 129.. This was a claim for special damages which was, in law, to be strictly proved. The respondent, therefore, could not be said to have sufficiently discharged that burden. In the circumstances of this case though, I am satisfied that the primary court erred in dismissing the claim in its entirety, ju.st as the district court erred in allowing the claim in its entirety. Both courts below were satisfied that the respondent made three court appearances in fact for which some expenses were incurred. So the respondent was entitled to nominal expenses for those appearances. The award by the district court was irrationally made. It_ was inconceivable that expenses to the tune of the sum of the claim could have been incurred for those three court appearances. I reduce the award to shs.24,000/=. This appeal, in consequence, partly succeeds. The award made to the respondent by the district court is reduced to shs.24 1 000/= (twenty four thousand shillings). The appeal fails in every other regard. Each party is to bear its own side of the costs in this appealo AT MBEYAo 12 February 19990 For Appellant: Absent. For Respondent: Present • B.P. MOSHI JUDGE.