19720923 TZHC Mwanza

. . . . etue ou ptw vj Aqw vjv OUOsum Ut!p3t 3 71. pttTTD VSVUT "MT M ppJ0oer ,ou sum o uo TUOR wto B , VqeAD Jo tu e uMT 4, 50 9 p; trr ( ptn ;o pt Lt PTP CTO Z u3puods.r ti-t cc 'trcT tiq pt tqtq T"c"WYTTO (•a) vtr Puu Gpuw utof ot jo uoto q; tro prx o, .o& g pu jo pot Li urt1 Vqj. Jtcj wo.; OS rzi w_r o is iVIUO r;uu !D3LTJ S14 UWttd 81tfl. t1t(M .U9xd Otl M '°H ç pu 0 pq Li ituo ptt?c:T prtJ qe,'tD PT (t:ci) utt vtoiq pe.oc'di 0M s3t!'tM p'o q .nq 1 uec3.xcT tou LU89 SJp[ PU2 UE?T'3 'tItUp3t it JO evu ss oad STJT ut Op u m uq 1.uwidr puv ptdpt tq ixop iuo elqT ;o ut ttt)0 ç pu ;o Li rqOAD PT VJ pt Ttt t. P' tI X0C!t v utt2 uq qouo ptt - put uopuoct - s ql !~ Jlro pur w.op ut.z uq TY OtTj efltO 9 Ut O1.t?0 JO PuOq 91 TflXttWx 9q SPJ PU.0T tTentTOCrmd stq sum .T Pulc 'to'? ptzs 1DT -i Jv o JO pr"nTj tit ttro 'ptp 0OUTS pq Ot[M J3'O 30 TT -pus Gou cl s e ad 'ttJ Ut O. ptEC pvq 1.tXTDU 0 Cs 9 J 9t. lsqq. 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O T Pt&d XTT t ;ss 000r 9 1.UPUO.1 9t uOttop rq tU0L iXop Jo ptrnji jo ocur Te rt utq.upuod,x WD.XJ 11.1-° Jo poty 91 AOO'.I 01. .'trt PT!J PvtT Ot Ut1(T( .to; UwpTtC 0A ictmowtuut .Z1OO S Jrtu l ld OU - f 0V 'NVHLVNOf I'fflT VCNLVP stisleh ............... • ......................... IIddV 'D TIi!T.TaI '(tL6r JO 9 V OT astO tt'ttO Yd 'h'oT1IctiTvI )1d °"°JQ 1L61 Jo tv i"o ut wortw wos'rtjAT jo 1.xro 1.t.Itcr JO UOttO wo.x.) 1L61 A O L1 (3d) 0M qyZJj7 UA ID UTTJT Vjri-IZXVjl dO JlTnoo TJIH tHi1J NI .4 IL - ••0O Y The trial curt referree Chenarawe 's evince to that of the respondent and the purporte. doers - John Nymetndu and' Ginasa. s the triel cuurt correctly served, tcre -des Ci filet in the rporxuent 's ease, I hvo just mentloho.. the feet that Ginasc sio Ohengarao was not prsent at he meeting. This is not by the other defence wit1soes,, The r poniente witne- sses wiso at variance as to where the 'mborore' (remarriage) ceemo - was performee. I think it • not without interest also that the names of John Nyame tende aGinaso nd were not suGcstc-d to Changerawe by the respondent as he cross-examined th co-headman. The Court consioered Changarawe as an in.iepenuent witness whose evidence could be relied Upon. That view can hardly be chalioned. However, in reference to the ex-hcaoman the learned oistriot magistrate had this, amoi other thins,-to say in his judgment. Ch.angarawe seemed t know nothing about the original dowry of 30 heco of cattle and 5 h- oats. lie, Gwba ...... was claiming 30 hu of cattle. There was no mentionof goats by Changaraweanb. his reasoning was in my view fantastic. It was not proof of payment of 30 head as Jory simply because Gweba was claiming this nwnber N-c ovicLance was led to prove the issue of 30 head of cattle oliagedly paid by Gweba." vTitiespect to the learneedistrict magistra - e, he missed the essence of Chan.arawe Is eviaence. Th0 ex-hecornan did not say that Gwebe had paid 30 heac of cattle. He bhiy sJ-id that at th, meeting - he chaired the ±eponaent paid 14 heau of cattle and (contrary to the magisttote's - LAM a M :'bc've referred to) goota an., that thu respondent undertook to repay the remaining 16 head Of cattle. That would appear to be a tacit admission by the respond ant that he still owd. Geba 16 head of cattle, In view of such admission which the trial ccut found proved, it was not open to the district court to reverse the primary court'e decision merely 'bcas, there was no direct eVidence that weha hec. palo 30 head of cattle. In my v.ew the respondent's aUm ssion before Changarawe was: sufficient proof that he owJ Gweba 16 head of cattle. In allowing the appeal the district magistrate seems also to - have rolicu. hovily on the eviuence of the respondent's brother that he had used the dowry paid by Gweba for paying his can dowry. From this the first appellate court coneiudeo that Gweba ha. paid no more than the dowry paid by the respondent's brother. This, however, was not sufficient to displace the appellant's contention as supported by the resondent's admission and P W.I's evidence that Gweb had paid 30 head of oattic.' It is true the reapondent's brother went on to say that he was present when Gweba paid dowry, 'n-ut against this there was evidence by P. ;1.l to which the district court Jio not advert itself that Mangweng'ura, reopon-.ent's brother was living in another area and was not present when Gweba paid dowry. From the tenor of the Jistrieb curt's judgment it sec-ms quite clear that the learne. district magistrate was impressed more by the bulk (in terms of number of witnesses) of the respondent's CiSC rother than the substance in it, and I em satisfied that ifhe had had a closer look at the record of the evidene before the trial court, he would have had little re son to differ from the conclusion that court had reache, dccorclingly, the appeal is allowed with costs. In allowine- this aeal I hve heL regard to the many ar 0uments cuntuined in the respondent 's memorandum of appeal to th his tri-i court The - first appellate court dio not refer to most of these-'- arguments as it was not necessary to do so, They seem generally to centre on t.e appellant's capacity to Sue the Z'esponaent. fh'es- punaent arguc(i in that memorandum that' the preeiint appellant should hve stated and proved if he was as Gweba'a heir. That was not rajseu at the trial and I think it was incompetent as a ground of appeal. Be that as it may, it seems to have been/i patently clear all through the originalroceeaings that the appellant was suing either as heir or' personal representative of thelate Gweba. It was .../3. also argued that the respondent could not be made liable to repay that which he had not received. This, too, was not suggested at the trial and the respondent was deemed to have acknoldged that he was a proper person- to sue for return of dowr received by his deceased father, Indecu, I would think that thetriel court which was conversant with cu.stomary rules of the tribal coimunity of the parties was satisfied that the suit was maintenable against the respondent. I would accordingly have rejected the arguments raised in - the memorandum of appeal to the district courts R44MRL L JONTI-LaN) 23rd Septewer, 1972 AG0 JiTBGLO ===== Fm