CIV/A/17/82

IN THE HIGH COURT OF LESOTHO

In the matter of

A8IEL KAIBANE Appellant

v

TOTA MAQOLD Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai

on the 30th day of October,1987.

Respondent and Appellant were respectively Plaintiff and Defendant before the magistrate court of Quthing where the former, representing his minor son, Lehlohonolo Henry Kaibane, claimed against the latter damages in the amount of M1,080-75 plus costs of suit.

At the close of the trial, judgment was entered in the following terms "Damages are granted to Plaintiff as preyed with costs". The defendant was, however, dissatisfied with the decision against which he noted appeal to the High Court on the following grounds '

"1. The learned magistrate erred

in law in finding that the defendant was liable to pay the sum of R1080-75 to the Plaintiff as well as costs.

2. The learned magistrate misdirected himself in law in arriving at a final judgment without any available evidence.

2/ 3. The learned.....

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3. The learned magistrate erred in law in arriving at a judgment in favour of the Plaintiff against the weight of evidence in favour of the Defendant."

It was common cause from the pleadings that the defendant owned a dun dog. According to Plaintiff's declaration to the summons his 6 years old son was, on 31st December, 1978, passing on a public place next to the home of the defendant when the dog which was outside the house attacked and bit him on the calf of his leg. He sustained injuries as a result of which he was admitted in hospital from 1st January , 1979 to 14th February, 1979. Consequently Plaintiff, representing his minor son, suffered damages for which the defendant was liable. Wherefore, he claimed against the defendant as aforesaid.

In his plea the defendant stated that he denied knowledge of all the allegations contained in the declaration to the summons and did not admit same. He, therefore, put the plaintiff to the proof thereof.

Briefly P.W.4 Lehlohonolo Henry Kaibane, told the court that he was the son of the Plaintiff. On the day in question he and another boy, Lehlohonolo Nkofo, were driving cattle along a public path. As they passed next to the defendant's home two people approached from the opposite direction in the same path. Some of the cattle ran out of the path and Lehlohonolo Nkofo had to go and drive them back. Defendant's dog which was within his premises then ran out and attacked him (P.W.4). It bit him on the right leg and he fell to the ground. Shortly thereafter one Felleng came and carried him home where he reported to his parents. The evidence of P.W.4 was in this regard, corroborated by that of P.W.3 Lehlohonolo Nkofo. Plaintiff also testified as P.W.1 and confirmed that P.W.4 did report to him that he had been bitten by Defendant's dog.

3/ According to him .....

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According to him, P.W.4 suffered great pain from the injuries caused by the dog. On the following day, 1st January, 1979 he was referred to Quthing Government hospital for medical treatment. He was admit­ted. Upon his discharge on 14th February, 1979 he was given a document which he handed in as Exhibit "A" at the trial.

The evidence of P.W.2, Dr. van Gelder was that during the time P.W.4 was allegedly at Quthing Government hospital he was not there. He, however, told the court, on oath, that the document exhibit "A" was a medical report on the condition of P.W.4 Lehlohonolo Henry Kaibane as of 14th February, 1979. According to exhibit "A", compiled by a certain Dr. Lumoers who had since left the country and was, therefore, not available to testify before the trial,court, Lehlohonolo Henry Kaibane was on 1st January, 1979 admitted at Quthing Government hospital because of a dog bite wound. The patient was discharged on 14th February, 1979, after two (2) skingraft-operations. In the opinion of Or. Lumbers it would take about a month for the wound to close up completely.

Although he denied that his dog had bitten P.W.4 Defendant conceded that he was not at home at the material time and could not, therefore, personally verify it. He however, called 24 years old D.W.2, Felleng Maqolo, to testify that she was the daughter of his elder brother. On the day in question she was visiting one Nkeletseng in the village. Whilst she was in the house of Nkeletseng D.W.2 heard some screams outside. As a result she got out of the house. She noticed P.W.4 lying on the ground and crying. When she came to him she found that P.W.4 had sustained injuries. She personally did not see how the boy sustained the injuries but on inquiring from him P.W.4 informed her that he hod been bitten by doge, that were fighting. She confirmed that she then carried P.W.4 to Plaintiff's home.

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D.W.3, Mafelebane Maqolo, testified that he wos defendant's son On the day in question he was stan­ding at the cattle kraal when he noticed P.W.4 and P W.3 passing next to defendant's place. They were rol-lowrd by two of Plaintiff's dogs, a black dog and a black and white one. Defendant's dog then ran out of his premises and attacked one of Plaintiff's dogs.

As they fought the dogs fell on P.W.4 Eventual

ly Plaintiff's dog managed to escape and run away chased by defendant's dog. P.W.3 then went to P.W.4 and found that he had sustained injuries. He did not, however per-sunolly see how P.W.4 hod sustained the injuries.

It is significant to mention at this juncture that at the time they testified before the trial court P.W.4. P.W.3 nnd D.W.3 were, respectively aged 10, 16 and 14 years, No oath was administered to them. They were merely admonished to speak the truth. The record of proceedings advanced no reasons why the trial magistrate did not administer the oath to these witnesses., It can only be assumed that he investigated and found that they did not understand the nature of an oath, presumably by reason of their youth. Assuming the correctness of this assumption it is imperative that the evidence of P.W.4, P.W.3 and D.W.3 be approached with caution.

Although D.W.3 testified that when ho saw them passing on a public path next to defendant's place P.W.I and P.W.3 were followed by Plaintiff's two dogs, this was denied by P.W.4 who told the court that no dogs were accompanying them at the time. In this regard P.W.4's evidence was corroborated by that of P.W.3. The trial court found for the Plaintiff on this point. Regard being had to the fact that P.W.4's story was confirmed by P.W.3, it was sensible to prefer it to the uncorroborated version of D.W.3.

Granted that no dogs were accompanying P.W.3 and P.W.4 at the time defendant's dog ran out of the

5/ premises ....

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premises and went to the latter, it is improbable that D.W.3 was testifying to the truth when he told the court that he had sewn defendant's dog fighting with that of the Plaintiff and in the process the dogs fell on P.W.4.

The evidence of D.W.2 that P.W.4 informed her that he had been injured by fighting dogs was denied by the latter. Having decided that at the time defendant's dog ran out of his premises and went to P.W.4 no dogs were accompanying P.W.4 and P.W.3 it must be accepted that D.W.2's testimony in this regard was also improbable The truth lev in the evidence of both P.W.4 and P.W.3 that, the former was attacked and injured by defendant's dog as the two boys were pissing on a public path. On the evidence, P.W.4 had done nothing to provoke the dog which obviously attacked and injured him out of its inward viciousness.

By and large I come to the conclusion that the evidence was simply overwhelming in support of Plaintiff's case and defendant was correctly held legally liable for demages.

However, on the question of quantum of damages it must be observed that the amount of R1,080.25 claimed by the Plaintiff comprised R1,000 and R80-75 arising from the dog bite and the resultant expenses, respec­tively. The amount of R80-75 for expenses was, in my view, a claim for specific damages requiring substantial and precise proof. If it were true that he did incur such expenses the onus was on the Plaintiff to prove them substantially and precisel0y. He could, for example, have easily produced receipts as proof thereof. No such rereipts were, however, produced. Plaintiff merely relied on his oral statement. That was not enough and, in my opinion, l,the trial magistrate ought not to have made any award under this heading.

There was, nevertheless, sufficient evidence. indicating that defendant's dog did bite P.W. 4 and caused him injuries for which he suffered great pain. I find no

6/ good reason .......

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good reason to doubt the evidence that as a result of the injuries, P.W.4 did suffer great pain for which Plaintiff was entitled the claim damages It was, however, common cause that the injuries had completely healed although some scare might remain That being so, I consider the amount of R1,000 crossly inflated and the justice of the case could have been met by an award of R300-00,

In the result 1 would vary the judgment of the court a quo, granting damages to Plaintiff as prayed with costs, to read "judgment for Plaintiff in the amount of R300 with costs," As either party has partly succeeded and partly foiled before the High Court it is deemed equitable that each must bear its own costs of this appeal. It is accordingly ordered.

B.M. MOLAI JUDGE

30th October, 1987.

For Appellant Mr. Masoabi
For Respondent Mr. A.P.S. Mda.