19710312 TZHC Mwanza

- - '— ''--' '---'------ p -."- ,•' • IN TEE' IllGk COURT OF TAHZnNIA AT MWANZA Appellate Juriscaction (pa) CBTIL N0 94 OF 1970- (From the decision of tie district court of Bukobs in Civil Appeal No. 34 o 1970 before A. II. Russ4a Esq., district magistrate — Original Kcnachunu primary court civil c as No. 15 2/69) AUGUSTIN MtJTAKJBTLA versus PAGMAZIA d/o BMETJHA • • * • • • S • • * • a r . • • • . • • •JL1M.JLL1 LL JIJffiIUGNT 1KIfMiC1A 2 AgT.J. The appellant stin huts ubwa in this case suod the respondent in the primary. court - at Kaiaach.xau in Bukobadistrict for the recoveIr of one cow valued at .400/-. He obtained judgment but on appeal, the district court lound against him, and ie is now appealing to this Court rp The appellant alleged, that, in 1962 9 he bought a cow jpintly with one Stephaflo Petro (P..2) ior c.500/-,' each contributing E0250/- He kept the cow for- a start and when it produced he shared its miii: with P.W. 2, the pantner'. \Then it produed the second time, however, he took it to P.h.2 1 who kept it but he continued to share its milk with P./.2. Meanwhile, the appellant was 1ing with the reondent as huend and wife but when they separated in 1967, the espondentc1aiued the cow and forbade the appellant from having any share o its milk. The appellant called thc said Stephano, in support of hi claim. The respondent sid that while she was still married to the appellant, the appefl ant asked her for some, uone y with which to buy a cow jointly with P.h. 2. She duly gave labs s.250/- and a cow was bought The appellant irsticted P.h.2 to make out a document ong that the respondent omed the cow jointly with P. 17.2, P.'.2 Cud SO and both P.h.2 and the appellant signed the document whi 1 h was thengiven to respondent for shie keeping, but the respondent misplaces it and it cannot now be traced The respondent infored the appellant of the loss of this document and he told h to obtain another docuiant of agrLuent from P.W. 2 She approeciacc P.W. 2 about the matter and P.h.2 duly de out another document (Exhibit-A) dated 7.5.67 purporting to reproduee the contents of the original agreement in writing which was lost, and making a ref erance to the said original agreement to the effect that the saii agreeslent was 1ost This later document, however 'mc signed by P.h.2 only and it bears no sinatuxe of the appellant. The • respondent called no vJinesses but said that she would rely on her own evidence and on the ev4ience ven by P.7.2 The prinair cou't found that the respondent failed, to prove that the contribution of b.250/- came from her because there were no witnesses who maw her giving this mony to the appeflant' The court tiereiore held that the cow in qtiestion was bought jointly by the appellant mad P.t .2 and thus i • *4(0 +-I4 - 11 •.-*- - - -4__ • - .2 the respondent had no claim to it Durinr; the appeal baoro the district court, the appellant ikoduced a cocuncnt (Exhibit B) dated 12.2.62 pur1Dortil to show that one Petr Makasi sold a cow for .500/- to the appellant end P..2. The appeflant Irelied on this document to show that he and not the respondent was the pelison in CO-OVlerShi1D o: the cow with P.;.24 The learned district uar;idtrate, after observing that the document was not produced in the lower coit, held that the document was suspect because it paper looked very new and the names of the persons allo: ed to have witnessed the transaction were in the handwriting of the Dther of the docunc-nt, that is to ay, the alleged witnesses neither s:i.ncc1 their n:ies ror thunbprintod aairst their names on the said docunont i-Is held that tha written agekeit which was lost coupld with the contents of the contents of/E:thibi.t-A, which seoho to reproduce the contents of 'that oreauent, provicd sii±ficient evidence to prove, that the respondent was the person in co-araeship of the cow viitii P.V?.2 The appe1lcrf, in his memorandum of appeal and in his argixient beforo this Court, contendedthat the district,magistrato ought not to have placed any reliance on the cIntents of Ebthibit-A because that document does not boor his signature to indicate that he did agree to the y.iatters stated thc-rein This argument is not without merit, and I would have upheld it except for the oral oidence of P.N.21 P.W.2 gave oral evidence of the contents of the lost 4ocwent He said that after he and the appellant had purchased the cow jin question, the appellant reiosted him to prepare a document ating thau it was the respondent who had paf C the money, so that in the evt of his (ppdflant s) deth 9 his children might not trouble the respondeflt Accordinily, P.W.2 made out a document as requested and both he and the appellit signed it after which it was handed to the respondent for safe kceping Soe five years later, the respondent informed P.7.2 that the Nument was missing, and again the appellant instructed P.W. 2 to give the respondent another document because the earlier one was missing. P.V!.2 accordingly vwoe out Exhibit-A4 It is clear from tile evidence of the respondent and P.\j'.2 that the original agreement in wting'vzas lost and therefore it would appear that the oral evidence of P..2, its maker, as to the contents oflit was properly admitted To my mind. ,the oral evidence of P.W. 2 was I5fficit to show that there wasn an agreement vthereby the appellant made it clear that the cow in question was bought in partnership between! the respondent and P.\i.2 At the hearing of the appeal s , tile appellant contended that reliance should be plcced upon Exhibit-B which shows that it is he and P..2 who bought the cow from Petro Makasi in the presence of witnesses"e As indicated earlier, the learned district rate, after observing that the document was not produced before the cc rt of the first instance, held that the document . . .3 eec suspect, Even assuming that the Cocu ier'kas genuine, it does not ss±t in deteneining the question of ownerchip. Tho pureilese of the cow was one thing but the ownership of it was quite enothcr. 2or, it is conceivable that the dppellant, being' ti-n husband of the respondent, bought the cow as an agent wllile his wife, the respondent, was the tiuc owner, end this is quic conistent with the respondentt s story In other words, the question of ownriip was an internal matter and the position is not affected by Exhibit—B which is only a record of sale and the nounes of the persons present and cncluding the sa10 It is for theod reasons that I would uphold the decision of the distct cOu and diiss the appeal with sts In order to s costs of malth'g another appearance before this Court, this judgaent , by consent of the parties, rcnitted to-the district court which should s on the parties and road the some to thern' iEU-iTZA -- - (Iisn 'AA Datee: 12.3019710 Ag DGE a