Lugakingira, J.: The appellant brought action in the Primary Court at Zanaki for F compensation of 16,000/= alleging that the respondent's cattle had destroyed her shamba of millet and potatoes. The claim was unsuccessful, the court holding that the evidence did not establish the identity of the offending animals. It reached that view after observing that neither the respondent nor his ten cell leader was taken to the shamba to G confirm the destruction and to satisfy themselves on the identity of the cattle. Additionally, the court criticized the evidence of the field officer in his estimate of the damage occasioned and said the evidence was vague. There was an appeal to the District Court H of Musoma which was dismissed on the same grounds, hence this second appeal.
There might be justification in the lower courts' criticism of the field officer's evidence but the rest of their remarks were outrageous having regard to the facts of the case. Apart from the appellant, there was evidence from PW2 Jeremiah Mwandika, the village I chairman, and PW3 Mussa Kello, a neighbour of the parties'.
All three knew the respondent's cattle; all three saw the destruction; all three drove the A cattle to the respondent's home. They called out the respondent but at first he ignored them. Finally he came out. As the appellant made to explain their mission he assaulted her so badly that she had to receive medical treatment. She informed me at the hearing of the appeal that she sustained a permanent incapacity as a result of the beating and that she B was pursuing that matter separately following the respondent's conviction for the assault. The respondent admitted the conviction. It is astonishing, to say the least, that it is this very man whom the lower courts expected the appellant to take to the shamba and blamed her for not doing so. It is equally amusing that the two courts would have C preferred evidence from a ten cell leader but not the village chairman. Furthermore, neither the respondent nor the two courts below had any word of where the respondent sent the cattle delivered at his premises. Of course the respondent denied that any cattle D were ever delivered at his home and in fact denied over seeing the appellant, PW2 or PW3 on the material day. His "evidence" was nothing but arrogance at its worst, and it is amusing how he carried the lower courts with him.
The decision of the primary court was also not free from contradictions. Take the advice E of the first assessor, Nyambiriti Wikama, for instance. He started off by saying:
Kwa maoni yangu na kufuatana na ushahidi uliotolewa upande wa madai unaonyesha F kuwa ng'ombe wa mdaiwa walikula shamba la mdai ...,
but ended up saying:
G ... sioni kama kweli mifugo ya mdaiwa ndiyo ilifanya uharibifu huo.
This problem could partly be accounted for by the summing up factor which found itself in this case. It seems that neither the trial magistrate (J.M. Waigama) nor the appellate H magistrate (N.M. Kaserero) is aware of the Magistrate's Courts (Primary Courts) Judgment of Court) Rules, Government Notice No.2 of 1988. I would particularly draw their attention to Rule 3 thereof which puts an end to the practice of summing up to the assessors. The assessors are to be consulted for their opinions after the conclusion of I the evidence without any preliminaries. If I were convinced that the
summing up in this case was solely or substantially responsible for the decision A reached, I would have felt compelled to quash the proceedings on the ground that the indulgence occasioned a failure of justice. I feel, however, that with or without the summing up, the trial court was under the spell of the respondent as shown by its prejudiced remarks following its visit to the shamba. I do not know how they did not B expect to find bush almost four months after the destruction complained of.
The field officer's evidence was certainly vague. It did not particularise how he reached the figure of 16,000/=. But this did not absolve at the trial court from forming its own C opinion and making a reward it considered reasonable. It would be futile to refer this matter back to that court as the position on the ground must have changed even more drastically and also since the court cannot have got over its prejudices in the case. I will take the risk of adjudicating in the matter and reduce the claim by 6,000/= as an D adjustment for the field officer's vagueness.
The appeal is accordingly allowed and the decisions of the lower courts are set aside. Judgment is entered for the appellant in the sum of 10,000/= with costs here and below. E
Appeal allowed.
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