Lonken Tenende and 2 Others vs Solomoni Mwakatundu ((PC) Civil Appeal No. 40A of 1997) [1998] TZHC 2433 (11 December 1998)

MOSHI J • ..... __ ---L-·- IN THE HIGH COURT OF TANZANIA AT MBEYA (PC) CIVIL,APPEAL NO. 4oA OF 1997 CoUrt (From Kyela Districivil Appeal No. 11/97 Before: M.Oo Lilibe - District Magistrate) 1:· I.ONKEN TENENDE 2. - KENEDY MWAM'fOBE ) ) ) Cl O Cl O C> •. 0 .3 •. PHILIMON M\1AIL1IT-1ALE) VERSUS SOLOM.ONI NWAKA TUNDU JUDGMENT APPELIANTS RESPONDENT There was a dispute between the villagers of Buloma village over a piece of land measuring five acres. The first appellant was the village chairman. The appellants claimed that the land in dispute was reserved by the village for cattle grazing,. The respondent claimed that the land was his property. It was common ground that the respondent had planted on the 'land banana plants, beans, maize, tomatoes, spinach, groundnuts and cassava.; The appellants, in consequence, preferred Ian,d Dispute No. 1 of 1996 against the respondent before the Kyela District land Tribunal claLing that land. The Tribunal then vl!'ote a letter (Ext A) directing the respondent to stop managing the land which included tending and harvesting the crops until the dispute was resolved. All the crops 1 in consequence, dried upo The Tribunal visited the land, and according to its Secretary, Fikiri Maham bi (PW3), who had signed the letter (Ext A), they saw all_ the crops which were drying up for. lack of care in consequencEtf the stop order. The Tribunal ultimately resolved the dispute in favour of the respondet, who then preferred. the suit against the appellants before the Urban primary court of Kyela claiming a compensation of Shso 800, 000/.:: for the loss of his crops. The respondent claimed that all is crops dried up for lack of care as a result of the Tribunal's order and held the appellan;.s liable for ~ving 0 •• 0. 0 .... ·/ 2 .. ' ' • I ..

2 :.. Ambonisye Elia (PW2) and the .Secretary of the Tribunal (PW3) who had seen the crops drying up in fact. The first appellant (chairman) apparently : 1 spoke on his behalf and that I of the second and third appellants. He claimed no crop of the respondent dried ]1 Ii • upo He said the respondent harvested bananas and tomatoes. Be did not say what became of the other crops. ii He called a cell leader, Oden Ngamanya (DW2) who said I ,i the resp_ondent harvested beans and spinach, but did not say what became of the 'i other crops. And his last witness, Augustina N1.rv~Ot! (D_l:·13) ,- told the trial court that the respondent harvested beans, maize, pota'toes, spinach and lln.rlanas. i'i ,, The primary court dismissed the suit with costs arguing that the respondent ,, had not substantiated his claim that the crops dried up for lack of care., The . ii ': court found the appellant 1 s ciaim that the resnbndent had harvested the crops ,t .I I, I more probable than not. The respondent feJ.t aggri,eved and preferred an appeal ii I • to the district court of Kyela which allowed the appeal with costs. The district ,I 'I I court, however, awarded a compensation of onl;,r,:shs.120,000/=, that is, shs •. I ' . II I 40000/:c:: per appellant, on the ground that the 11 r-espondent had not explained how ,I/ I . I he came by the sum of shs.800,000/=. The apper-~ts, in turn, felt aggrieved, hence this appeal in which the parties entered'I appearances before me and said 1: ' I they abide by the contents in the memorandum of appeal and in the written reply ;1, to it, ) I' j, t ' . I 1 riis ·c.ppea 1 .-Jith respect, I am satisfied that is devoid of merit. The :I trial court's finding that the respondent's c~(e 1 ;was unsubstantiated was clearly against the weight of the evidence on .i:cecordo The ·evidence of the 'I respondent as supported by that of PW2 and PW.3 clearly established his case en I ' the balance of probabilities. The 'l'riburial 1 s, order was unconditional. ,, It did not leave room for the respondent to harvest ts crops. The letter had ended: I ., Kwiyo kwa taarifa ya barua hii un9.takiwa usimamishe shughuli zote ka tika al'.'c' 1 1i hiyo j hadi hapo shauri hili litakaposiki: izwa~ na kutolewa uamuzi wa Baraza hili. The district court rightly observ€<"' th~L had the respond€nt contravened

"' 3 the directive the appellant would certainly hav2 registered a complaint gainst him before the ~1ribunaL The Tribuno.l itself visited· the land and saw the crops tjrying up. Of course 1 the 'I1ribunal 1 s directive was unreasonable in the circumstai"1.ceso T:te re.spondent ought to have been allowed to continue tending his crops and to harvest them. • But the Tribunal did not deem it proper to do so, and the respondent had to comply, and did comply, with the directive to the letter. Tl1e ~lairn 1 in .law, was for npecial damages which had to be strictly proved by the respondento But the reston.dent, as found by the district court, failed to discharge that burden,, 3o he was entitled to nominal da.~ages only. This 0 ppeal, in consequence, foils, and it is dismissed with costs ' here and in both courts below. B, "• MOSiff J.T HBL'YAo 11 December 1998. For Appellants: Present. For Respondent: Absento

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