Benedict Pius

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI (PC) CIVIL APPEAL NO. 19 OF 2023 (Arising from Civil Appeal No. 12 of2023 of Babati District Court and originating from Civil Case No. 7 of2022 of Magugu Primary Court) BENEDICT PIUS MOREMBWA...................................................... 1st APPELLANT RAFAEL FABIANO........................................................................... 2nd APPELLANT

VERSUS BADADA SAMBULA......................................................................... RESPONDENT

JUDGMENT 11th March and 3fd May 2024 MIRINDO, J.: Rafael Fabiano had dealings with cattle belonging to the Benedict Pius Morembwa, and Badada Sambula. After a while Badada Sambula, claimed giving twenty-one herds of cattle to Rafael Fabiano who secretly moved them to Chemba District in Dodoma Region. He followed the cattle in Chemba and Rafael Fabiano gave him twenty-seven herds of cattle. The twenty-seven herds of cattle included cattle given as part of fine paid by Rafael Fabiano for selling two herds of cattle without permission from Badada Sambula. 1 It would appear that Rafael Fabiano was taken to a police station in Chemba, as a result of the complaint lodged by Benedict Pius Morembwa at Magugu Police Station in Manyara Region. After twenty-seven herds of cattle were taken to the police station in Chemba, Rafael Fabiano was transferred to Magugu Police Station where the complaint was originally made. On arrival of Rafael Fabiano at Magugu Police Station, Badada Sambula was ordered to take the herds of cattle which he apparently took from Chemba. By the time he took the herds of cattle to Magugu Police Station, they numbered twenty-six. The Police made an arrangement: Benedict Pius Morembwa was given thirteen herds of cattle and Badada Sambula fourteen herds of cattle. Badada Sambula was not happy with this arrangement and went before Magugu Primary Court claiming

ownership of the thirteen herds of cattle given to Benedict Pius Morembwa. He sued both Rafael Fabiano and Benedict Pius Morembwa. The defence case was that Rafael Fabiano, was given fifty-four herds of cattle by Benedict Pius Morembwa, on the condition that each year Benedict Pius Morembwa will earn calves from the herds of cattle. Rafael Fabiano testified that he sold forty herds of cattle out of the fifty-four in collusion with Badada Sambula. From that sale they added either fifteen or twenty herds of cattle. He 2 then went to Chemba with thirty-five herds of cattle fifteen of which belonged to Benedict Pius Morembwa. Benedict Pius Morembwa testified that he reported loss of his cattle to a police station but discovered that the cattle were in Chemba. In Chemba he arrested twenty-seven herds of cattle and took them to a police station. As stated earlier, the complaint was referred to Magugu Police station where Benedict Pius Morembwa was given thirteen herds of cattle. At the conclusion of the trial, the Magugu Primary Court held in favour of Badada Sambula. Both Benedict Pius Morembwa and Rafael Fabiano, were aggrieved by this decision and unsuccessfully appealed to Babati District Court. They have now appealed to this Court on three grounds. At the hearing of the appeal, Mr Anold Tarimo, learned advocate appeared for the appellants and the respondent had the services of

Mr Aballah Kilobwa, learned advocate. The appeal was argued by way of written submission. In the two grounds of appeal, having dropped the first one, the appellant's main complaint was that there was no proper re- evaluation of evidence by the District Court, the first appellate court. The appellants argued that there was no evidence that the respondent gave twenty- one herds of cattle to the second appellant, Rafael Fabiano. It was argued for Badada Sambula, the respondent in this appeal, that the claim was proved on 3 the preponderance of probabilities. The respondent's counsel referred to the second appellant's "confession" before Magugu Ward Executive Officer who testified as the third respondent's witness. There is no doubt that the genesis of the ownership of the thirteen herds of cattle revolves around the second appellant, Rafael Fabiano. The second appellant admits to have cattle dealings with both Benedict Pius Morembwa, the first appellant, and Badada Sambula, the respondent. The respondent's case was a claim for thirteen herds of cattle given to the first appellant. This is a claim that originates from the herds of cattle the respondent once gave to the second appellant. Although the typed proceeding is slightly different, the handwritten version indicates the second appellant admitted in Kiswahili the following facts in cross-examination by Advocate

Kilobwa: Nilipewa ng'ombe na Benedict. Hatukuandika popote. Zote ni za mdaiwa wa pili. Ng'ombe wa Benedict wakipotea wajibu ni wangu. Mwaka huu mwishoni anautaratibu wa kukagua. Badada na mfahamu miaka minne nyuma. Benedict na Badada walinipa ng'ombe. Badada alinipa ng'ombe 10 nilikaa nao Magugu... That this is a true account of what the second appellant testified is clear from his evidence in -chief in the handwritten version of the proceeding: 4 Badada alipakia ng'ombe 54 kwenda Rufiji. Tulikwenda kuuza mbuzi...Ng'ombe kumi ni wa Badada aliziunganisha. Nilikwenda na ng'ombe 35. Ngo'ombe za Benedict zilikuwa 15. Nilikutana na Badada akasema niuze ng'ombe zake. Badada amenishitaki kwa kuuza dume lake moja. Mdai alinyang'anya wale ng'ombe nikabakiwa na ng'ombe 4. Mdai alisema nijifiche. Nilipelekwa kituo cha Polisi Chemba. Nikaletwa Kituo cha Polisi Magugu. Zililetwa ng'ombe 27. Nililetwa kutofautisha hizo ng'ombe, Nyingine ilikuwa sizifahamu, Ng'ombe wa Benedict ni 13. Polisi walikabidhi ng'ombe 14 kwa Badada In both accounts, the second appellant admits that ten herds of cattle were given to him by the respondent, Badada Sambula. Again, he admits that the first appellant, Benedict Pius Morembwa is entitled to thirteen herds of cattle and that the first appellant gave him fifty four herds of cattle. It is clear that both the respondent and the first appellant are entitled

to recover from the second appellant. From the evidence on record the first appellant is by admission of the second appellant entitled to thirteen herds of cattle. By admission of the second appellant, the respondent was also entitled to certain herds of cattle from the second appellant. Other than the admission of the second appellant, there is no evidence that the respondent was entitled to recover from the second respondent more than ten herds of cattle. There is no evidence how the respondent gave cattle to the second appellant. There are no 5 details of the time, location and conditions under which cattle were given to the second appellant by the respondent. As stated earlier, it was argued for the respondent that the second appellant admitted transferring respondent's cattle without his permission. As correctly pointed by the appellant's advocate, the second appellant's admission before Village Executive officer is inconclusive. Apart from establishing the second appellant's transfer of the appellant's cattle to Chemba, the number of the cattle transferred is not mentioned. It is clear from the written admission that the second appellant agreed going to Chemba to handle the cattle to the respondent. From the available evidence, the second appellant admission is confined to ten herds of cattle and there is no reference to twenty-one herds of cattle. From what I have

stated, I hold that the Babati District Court did not perform its duty to re-evaluate the evidence adduced before Magugu Primary Court and their concurrent findings cannot be allowed to stand. I set aside the decision of Babati District Court affirming the decision of Magugu Primary Court and hold that the first appellant, Benedict Pius Morembwa is entitled to thirteen herds of cattle given to him at Magugu Police Station. I further hold other than the fourteen cattle given to Badada Sambula at Magugu Police Station he is not entitled to recover any herd of cattle from Rafael Fabiano. 6 In the result the appeal is allowed with costs on this appeal and the two courts below. It is ordered. DATED at BABATI this 28th day of April, 2024 F.M. MIRINDO

JUDGE Court: Judgment delivered this 3rd day of May, 2024 in the presence of Advocate Arnold Tarimo for the appellants who also held brief for counsel for the Respondent's Abdallah Kilobwa. B/C: William Makori present. F.M. MIRINDO

JUDGE 3/5/2024 7