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.....

-2-

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 .....

-3-

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.

-4-

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 ....

-5-

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 .......

-6-

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.