197007117 TZHC Mwanza

;7.4 1 _j_ 1 -" FIIGI (;C;IL.T O T ZAtL' Li I'ANZL Appellate Jurisdiction (:6) CIVIL AliELL NO, 7 OF 1970 (Frai the dcciion of the district court of North Eara in Civil Appeal No 227 of 1969 before C. A. Lwelungera Esq., district nerisrate). (Oriinal Civ/l Case Not 61 of 1969 of Nyiuisanura prinary ill VIJJ.UiJ/ ........................... versus ODGEKILT.EI . . . . . . .............. ... ..iLESP0NDEN JUDITT C KIMICHL, . The appellant in this case clained 3 head of cattle, 2 goats and 30/- frolra the respondent 0dene Kinweri in the Tariuc prinary court and his ciaiL was successful for 3 head of cattle only.' Odonge' s appeal to thedisrict coin't was upheld and the prinary court decision was reversed. /Iar\va iabura has nv appe clod tb this Court a: dns't the decision of the/distct court. The district court jud';::ont is reproduced below for easy reference:- Judjaen:t / This is a couparatively ample caso Tlho present respondent lvlcrwa sued the appellant Odcne his ox-fatior-in-law for the refund of the balance of dovTy of 3 head of cattle, 2 goats and S.'30/- in / cash belore the prinary court at Rpmjm Nyanisangura,' where he obtained a juduent awarding hmn 3 hoed of c':btle, but unsuccessful / in his claim of 2 goats and 30/-i as it ap:e'red. to that court that / there was adduced not a particle of evidence in support of this part / of his claim4 Earwa had stated that he narriod appellant's daughter Di. Priha in 1962 under Kuria custais and that their i:icirie,o broke down in 0ctober, 1964 and they separated. That he had paid 20 hea ,l of cattle in the iist place as dowry to the appellant, and. then slaughtered 2 oxen for both appallant and appellant' s wife after the wedding and t the third calf he gave to the appellant as a pro sent' Merwa called two witnesses to the court' of' first instance on his behalf, Gati Korosho (P.77.2) and his brother-in-law Mirumbe Marwa I.i.2 testified that Marwa slau:htorod one ox forthe appellant's wife, on her visit to Marw& a house customarily, iibci , the apuellcnt's danghter appeared to be pregnant, and the lntter witness gave his evidence that Marwa had er:ain slaughtered a second ox for the appellant c.nd that he gave appellant a calf as a present because the appellant had given them some poubo and cooked thou food with fish and had killed then a hen when he and Max'wa visited him. Deiying the claim the appellant said that ho haei repaid the plaintiff all the 21 head of cattle he had rccivod as brideprico. His sole witnosà, a 10 cell loader, Osoko liasebo (D.v7.2) said that ,'then the appellant repaid Marwa 21 head of cattle, Liarwa. still claimed 3 head of cattle that he had slanrghtercd then for the appellant. The court bel', which appears to have been impressed.. by the'plaintiffts e±iclence gave its judgment for hin tO be repaid 3 cattle. 1 - - - - - 0dcnre is now appeclinZ, to this eourt with reasons of aSoa1. 3 hat 1 the plaintiff had slau;htered the two ant'tals for his wedding, that he was not given the calf and that he refunded dl the 21 heed of c 3 ttlo he had received vhon the plaintiff thcow the body of the - child his daughter had born for the plaintifI' z in a Jdmjdc thicket. Accor'rcling to Exhibit 'L' , a letter from the Lic1oro court, the appeiJiant' s daughter had' sought a divorce and obtained it in that court' s ciivil case No. 52/64. Iccording to the very document, in which it is said the relevant case file could not be traced, the loaiu party was icrwa as costs wore awtrded a;ainst him, and he says ha dij.. not a1Dpeal against that jubaent. He was therL fore the cause of the breakdown of the narTiage, and therefore the guilty party in the union. This together with the fact that a child was born during the marriage, blthotv,h it died, plusny opinion that the evidence of the vtncsses alled by idlarwa is not entirely free from doubt, and dsO that it could not be just to order the ap:ollant to repay the call' he was givn in exchge of food and pimbo, I quito feel that M.ria' claim should not had succeeded in the first court - citing paragIapiis 52, 53 9 5 and 56 of the Lcxi of Persons, G.N. Eb. 279 of 1963 as app1icablein this district by virtue of G.N. No. 604/63. I conequetly reverse the lower courts finding, allowing Odeñac' s appeal, Costs of this appeal of 32/- plus bus fares of k h.71.80 awarded against iIcrwa. ilight of appeal fully advised. Sgcl/- C. L'. Iwelungera, District Liaistrate. Narwa' s ground of appeal to this Court is that:- • Ground 2: "That I did not appeal in the ori - ind case at fliogoro because I saw that there was no reason for appeal as my statement was not recorded properly by the trial magistrate because there VJaS a misunderstanding between me and him. So, I decided to reopen tho case in anpther primary court which has the same power." \'it.h all repect to the appellant, I hold a. different view of the matter. I am of the view that Narwa' s prompt natural reaction to the alleged trial ncmitrate' s abuse of power would have Dum to appeal. to a higher court at one rather than tshe the course he had taken of incurrin fresh expenses andlinconvenionce of oponing the case at a different cour1. I an satis ed that the district court decision was,2ctually and legally sound and the appeal is for this reason disaissed"vith costs. MVUJf ZI, - (II..Kimic- 17/7/1970. L