19720901 TZHC Mwanza

- INT.HTJ HIGH COURT 01 TANZANIA at Hvianza (PC) CIVIL APPEAL NO. 59 OF 1971 (From the ciebision of the District Court of Kasulu at Kasulu in Civil Appeal No, 13 of 1971 Before N. J. Luiigoabe, Esq., District Jagistrate, and Kiruiigwe Primary Court Civil Case No, 21/1970 BWILI7A NAH:.NA .....,... . ...........Appellant versus NANIYE s/ RUK[JTA ........ Respondent JLDGiEN EL-KIE])Y, J. - The dispute in this suit is over the size of shares of a head of cattle to be given to each side. At the Primary Court, it was hold that the respondent was entitled to share, but on appeal the share was hold to be 4, The appellant, Bwiliza Mahina, took his appeal to this court arguing that the respondent's share was just --. The undisputed part of the evidence sbod that the appellant, the late father of the respondent, and Banana hold shares in the disputed head of cattle. It is also not disputed that the appellant bought the share of Bunano when the latter was short of money to moot tho hospital bill. It, was clear that only two people remained sharing the head of cattle. The respondent sued the appellant in court claiming that the appellant had taken - more than his correct share when he passed his share to a third person where his son was married by way of bridg price, but the appellant maintained that he only passed his correct sharo. According to the rospondont, his shake was 4- of the head 0±' cattle, as that was the share he inherited when his father died, His witness (P,W.1 ) said that he was aware that the head of cattle was shared by three people, but he did not lrnow the proporipns of the share-s seich being the case, his (P,T,1 ) evidenceriot support the allegation that the respondent 's share was 4-. His second witness (P..2) said that heed the apollant tell the gathering that the share was 4- when he waspct.ing bride price, but it not clear, from his evidence, whose share was alleged to be half of the- head of cattle. But the appellant said that ho share-c'. the disutod head of cattle with the late father of the rospondont and uJaono, • and that his share was half and the other half was shared eoually botweon the late father of the respondent and uhonu. Later he said he bouht tho share of ]3uhono and thercfo:o his share became three quarters and only quartcr remained as a share of the- late father of the ropondont, Ihorcfore he said, the rcpondont could not possibly have half when his share was only qua'to His wtncss .iisokw (D 1 ) s -' j tho , he witncssed when the appellant bought Buhono 's shaxe for Shs, 1 05/ as hc was the one who convoyed the purchaso price to Th,thono, and that his share which was -s-, and in cross-examination he said that the not share of the appellant became --, Kisokwa was a grandson of Bu.hone. nd'Swagala (1).W. 2) too said that he saw the appellant buy Buhane's share and upon crossoxaination by the assessors, - 2 ho said that boforo the purchase of Ethano 's share, the appellant's share was - it can bc soon there was a sharpo conflict on the issue of facts, Tho gcntleLlon assessors were of divided opinion The first assessor hold that the rospondont had established his sharc of -i-, but the other said he had not. Both gave as tlioir reasons that the witnesses. foropposite sidos were un reliable, The learned trial iaagistrate hold that the resnondont failed in his clai:a as he had no personal knowledge of the original pro -oortions botwoon the throo peoplo and thoroforo, he was not a witness who could be relied on to give reliable ovidonec. Ho had a point hors, as the rosnondont did not know how the cow was originally shared b, his lato father and the other two while the appollant was the actual participant right iron inc ijegimiflg of the rolationship, He hold, thorof ore, that the appollant ' evidence should be accepted and it followed that the roscndont could only have - share which if ho sold it all ho would have no more sharo tttho disputed head of cattle. On appeal, the apollat9 iziagistrate with the unanimous opinion of the two assessors, hold that on the evidence, it was not stated what was the share of the respondent and that the ovidonce given for the appellanto differrod, and therefore the rospondont should have - share. The appellant contended that on proper reference to the evidence it is evident that the ros -pondont only had and th at the appullato court erred in reversing the trial court's finding, is I have said, the evidence disclosed a sharp conflict of facts. In such circunstancos the best tribunal to resolve such conflict would be the trial court which had the advantage of hearing the witnesses Speak. This advantage could have the effect of tipping the scale onoway or the other, Therefore, unless there is a clear reason for dis- agreeing with tho assessment and the finding of the trial court, the appollai'Ii6uld accept the asses em ant of the trial court. Can it be said 'that the appollat court was entitled to reverse such a finding? in the first place, it TMS for the respondent to prove his case on balance of probability if he was to succeed in his claim Ho cannot expoct to take advantage of omzission of the appellant- i to ac -ti in his favour. If the evidence was clear the exact share was not stated, it was not clearly stated by the respondent and not by the anpollant, but the respondent, by necessary inference arising iron he proper reading of his evidence, that his claim was -- of' the head of cattle. Tho appellant and his witness wro uncler than the respondent when they specifically stated that the appellant's share was - and the other half was shared equally by tho late father of the respondent and Buhane before Buhones share was brought by the appellant. with respect, it does not appear to no that those was any lack of clarity n the point, kpually I do not find any material differences in the evidence f the appellants case. Both grounds given, therefore, do not sound to be sufficient for upsetting the decision of the trial court. On the other hand the trial magistrate- 's reasons for voting: in favour of the assessor who held in favour of the appellant appear to be very sound indeed, ike respondent had no porsonal knowledge of the original relation-- ship, and therefore, he could not possibly 1)0 in a osition to swear that his claim was well founded without the support of other evidence, as Iho appellant could since he was a participant. The trial magistrate had the advantage of seeing the respondent speaking and he must have formed adverse impression of him. This advantage the appellate court did not have, knd as I have cemented above the evidence of the respondent 's . evidence was short-distanced, In the circumsiancos., I find that the appellate court should not have lightly disturbed the findings Of the trial court, - - .------ -,..-. - •.ndas .1 have don.onstratocl above, tho appellnt 's ovicicnco or. balance of probability,thc best and reliable, I accordingly allow this appeal. I sot aside the District Court juclgcuont and restore the juciciient of the trial court, Althrl.urh only the respondent appeared, tho apijollant is entitled to his costs in this casc He spont only Sh, 1 e/= for filing this appeal in this court He indurrod no other expenses visible on the record, i€award hir costs of hs. 1 8/= which the respondent should 'ar to the appollant. .s previously indicated the part ice should be notified of the results of this appeal. Delivered In Court at Mnza on the 1 st clay of $cptcrabcr 1972 in the absence o both partis. A. (Z, l. El—lindy) 1st FJeptocbor, 1972 JUDGE /1 ... 4