SATEN KASOLOLONGO AND OTHERS v MCHELEKILALA AND OTHERS 1990 TLR 105 (CA)

 

SATEN KASOLOLONGO AND OTHERS v MCHELEKILALA AND OTHERS 1990 TLR 105 (CA)

Court Court of Appeal of Tanzania - Mbeya

Judge Makame JJA, Omar JJA and Mnzavas JJA

1 September, 1990

Flynote

Civil Practice and Procedure - Compensation - Nominal - When awardable. I

1990 TLR p106

MAKAME JJA, OMAR JJA AND MNZAVAS JJA

-Headnote

A One of the respondents was assaulted by the appellants. The trial judge was

satisfied that assault was established but that the extent thereof was disbelieved and

awarded only shs. 300/=. On appeal challenging the quantum of compensation.

B Held: Whereas there was evidence that Kusenza was roughed up it is clear that

the alleged extent of assault was disbelieved by the learned trial judge. Not only was

there no medical evidence, documentary or oral, of the injury, there was also no

convincing explanation as to why he did not make a report at the Police Station.

Case Information

C Order accordingly.

Bateyunga for the respondent

[zJDz]Judgment

D Makame, Omar and Mnzavas, JJ.A.: The appellants in this case were sued by the

four respondents, all brothers, for damages in connection with some head of cattle the

respondents alleged had been taken away without their consent. The outcome was

that the High Court (Mroso, J.) found the first three appellants liable to the second E

plaintiff Misele Kilala now the second respondent for shs. 60,000/= for the six head of

cattle found to have been seized from him wrongly, and shs. 300/= to the respondent

Kuzenza Kilala for the assault he was found to have been subjected to. The appellants

have come to us protesting against the High Court decision. On their part the F

unsuccessful respondents/plaintiffs have cross appealed.

At the outset we wish to make an observation regarding two aspects of this appeal.

The first is, as we told the first three appellants, we did not think they should have

included their Kilyamatundu Village Council as one of the G appellants because the

Council was not found to be vicariously liable. We accordingly struck off the fourth

appellant. Secondly, on the evidence, if the first three appellants were properly held

to be liable we think that the decision that the Village council was not vicariously

liable is open to argument: the fourth defendant, the Council, admitted at least the

Village Treasurer Maiko Mwamwenda was its employee; and is also clear from the

evidence H of Bonaventura or Boniface Kipesha, the second appellant and the other

two appellants held offices also in the Village council as distinct from their C.C.M.

Branch posts. We do not however propose to say any more about this I because we

see that although Mr. Bateyunga learned advocate for the

1990 TLR p107

MAKAME JJA, OMAR JJA AND MNZAVAS JJA

respondents/cross-appellants had made this his fourth ground of cross appeal he

informed us he was abandoning A the matter.

We naturally start with the appeal. The learned trial judge believed that Kuzonza was

assaulted by the appellants and we think that the evidence of Kuzenza himself and

Michangu (Maiko) Kilala between them established the B allegation. The learned

trial judge awarded only shs. 300/=, which was clearly nominal, merely, but we

cannot fault him on this. Whereas there was evidence that Kuzenza was roughed up it

is clear that the alleged extent of assault was disbelieved by the learned trial judge.

Not only was there no medical evidence, documentary or oral proof of the injury,

there was also no convincing explanation as to why he did not make a report at

Kamsamba Police C Station. Kipasha said the Police Station was only half an hour

away and we see that he was not cross-examined on this. We would not be justified to

disturb the award of shs. 300/=. We accordingly dismiss the appeal on the first ground

and by the same reasoning we are unable to entertain the fifth ground of cross-appeal

in which Mr. D Bateyunga sought enhancement of the award.

In the second ground of appeal the appellants challenge the finding that of the cattle

taken from the respondents six had to be compensated for. The learned trial judge

carefully sifted the evidence and got his arithmetic right. He explained that the

appellants took from the Kilala brothers a total of twenty four head of cattle, Less the

eight he E found legitimately taken in connection with Village lorry project and less

again the ten beasts restored to the respondents by the Police, the balance was six

animals on which he placed the price of shs. 60,000/=. We dismiss this second ground

of appeal accordingly. F

Regarding the cross-appeal, because as aforesaid Grounds 3,4 and 6 were dropped and

as we have already disposed of Ground 5, only Ground 1 and 2 remain to be

considered and those are of course closely interrelated.

Mr. Bateyunga has urged that the third and fourth clients were not residents of

Kilyamatundu Village and so they G should not have been required to contribute for

the acquisition of a lorry for the village, alternatively they were not party to the

resolution. On our view it is rather late in the day for the cross appellants to canvass

the contention that they were not party to the resolution even if they were villagers.

Their stand throughout was farther than that - it was H that they did not belong to

Kilyamatundu Village at all. On the balance of probabilities we are satisfied that the

assertion that Machangu (Maiko) Kilala and his younger brother Kuzenza were

resident at Kilyamatundu was proved. It was unconvincing to say that although they

used to take their animals to Kilyamatundu Village for grazing I they did not know

that during the alleged

1990 TLR p108

A encounter with the cross-respondents they were on Kilyamatundu territory.

Their contradictions as to the number of animals they had with them at the material

time - now 400 now 900; the number of marauders - sixty or ten people, and Brother

Mchele's denial of their contention that they had obtained a permit to drive the cattle

to Moleza village all go to indicate that the two cross-appellants were untruthful.

B With respect to Mr. Bateyunga, we do not think it is quite correct to say that the

learned trial judge found the contributions were collected by force. He believed that

the legality and propriety of the resolutions that the contributions were made were

not really challenged, only that when the two cross-appellants put up resistance, C

unreasonably in our view, considering the evidence, the unreasonable resistance was

overcome. This, per se, did not make the collection of the contributions unlawful.

D We dismiss both grounds in the cross appeal.

We order each side to bear its own costs for the appeal and cross appeal. For the

avoidance of possible doubt, this order does not effect the High Court order as to

costs.

E Order accordingly.

1990 TLR p108

F