na TZHC Mwanza

IN THE HIGH ; CQPT OFTNZiNIP .LT MWi\NZJ . (Pt) CIVIL &PEJL No. 182 OF :1. (From the d(;e :isio;of"the.DistrIct Court of N'zgc:at Nzaa ii,Civil !ippcal No. 3 of 1971 before D.J. Gumbo ]Tsq., D.M. and Sungwizi Primary Court oriinal Civil Case No. 20/70). I1LPEN1CIRO © IiLKJLj /o)NBOC-O . . ... • , . . • .. •• '.JPPE'LLLIJT . . •. . -. . versus ' OLO d/o KIULJi 111 SPOIJDJ.1TT J tJDGMLNT This is a second appeal by Mapengelo Mbogo or Makala Nbogo from the decision of Sungiizi Primary Court at Nzega diutrict and alsofrom the decision of the District Magistrate Nzoga. Iccording to the record, the respondent Halo was claiming two cows worth Shs. 200/ from the appellant. The Primary Court decided the case. in favour of the respondent Holo and awarded her 50 herds of cattle. On appeal to the District Court the District Magistrate reduced the number of cattle from 50 to 30 herds of cattle.. The evidence t-ihich the respondent adduced at the original trial court was to the effect that her fa.-thQr,. ha.d k&t two cows with the appellant and that her father left for Singida in 1936 to look for a job. 11t that time the respondent was very young and that she was informed of the fact that two cows had been kept at the appellant by her fthcr by her grandfather by the name 'of Msongi. She further claimed that she had learnt of this fact (that the appellant, had some cattle belonging to her father) about 10 years ago. There was furth'r evidence by one Mpugi Mshashi who is recorded to be 70 years to the effect that he assisted the father of the respondent to take two cows to the appellant's place whcrc the cattla were left, Also one Bkari said he saw the two co-zs which were taken to the appellant and that at that tims he (Bakari)'was 16 years old while now is 47 years old. The appellant denied completely that the father of respondent ovcr kept any cattle with him. The' first pertu.rbing feature in this case is that the respondent stayed for too long before claiming from the appellant. In 1970 when this case started the respondent was racordcd to be 45' years. This would mean that in 1936 she was about 11 years. fccording to her own testimony she lecarna aware that she had seine cattle to claim from the appellant about 10 years ago. Unfortunately there is no evidence aQ to, when the respondent's father died - from which date the respondent would have bccn able to - claim inheritance. However taking her own word that she became awciro of her right to claim these animals about 10 years ago, one would rightly assume that that was the time when the right to sue acruod. That being so, I think 'the respondent delayed too long in bringing the proceedings. Under the circumstances, oven given the maximum of sympathy the claim is certainly time barred. The suit was therefore time barred when it was filed, .' This point was not touchçd by the two courts below. This is enough to dispose this appeal. The appeal. is thus allowed and the decisions of the courts below sot aside. I might just in passing point out that the award of 50 heads of cattle out of a claim of 2 cows was without any basis. Neither the Primary Court nor the District Court recorded any avidcncd on which they based their decisions. In the Primary Court the respondent was recorded as paying that atone time she went to the appellant and saw 50 heads of cattle. There was no evidence as to how she was able to identify the alleged animals which. I am sure such animals could only be off-springs of the original animal as I do not think the original animals 'could still be alive, 34 yCars since they were handed to the appellant. More serious is that the District Magistrate mis- directed himself even more than the Primary Court. If I may quote a passage from the judgment of the District Pagistrate which reads:- .. ... . . / 2 / "In my opinion no correct assessment can b\e..mada but on -. simple prosup±ion that 'the animals reproduced there would be. not )c.ss than 30 heads of cttic, taking into consideration disease outbreaks resulting into deaths. " I are sure it must be within the knowldg.of the lcerncd District Magistrate t that the court cannot act on siitpla prcsumptions .s he himself puts it to dcide on a iint ci fact. ht r Or not th-2 to cows b ,:.ling climGd hav no multiplied to 30 cannot be a qucstionof presumption. It is a question of fact. To show the absurdity which can result from acting o posumption as in ...thiscsc one can also presume that ti two cows in fact did not reproduce and with the passa'c of timc (34 years and more) the animals grew old and died of old ago. Lach party to bear his/her own costs. . ... . N.M. MLITtI ' ,,CFIIL'FESL NT JiLGITRLTh