19791211 TZHC Musoma

• IN THE HIGH COURT OF TANZANIA AT NUOMA (PC) CIVIL APPEAL NO. 22 OF 1979 (From the decision of the District Court of Sererigeti District at Mugumu in Civil Appeal No. 58 of :1977) BEFORE: C.A.C. ODONGO, ESQ., DISTRICT MAGIS'RATE • (Original MUGUMU Primary Curt Civil Case No. 109/77) KIHONGO MARWA ................... . . . . . . . . . . .........• APPELLANT VERSUS NYAIVIHANGA MWITA ..................................... • • . RESPONDENT J U D G E M E N T MFALILA, J. In the Primary Court at Mugumu the respondent Nyamhanga Mwita claimed two heads of cattle from his father in law the appellant Kihongo Marwa being balance of the 24 heads of cattle he paid as bride price when he married the appellant's daughter. He told the Primary Court that when his marriage to the appellant's daughter broke up the appellant refunded him 22 heads of cattle leaving a balance of two which he was then claiming. On his part the appellant agreed receiving 24 heads of cattle from the respondent as bride price when the latter married his daughter. He also agreed that out of these 24 heads of cattle he refunded to the respondent 22 heads of cattle leaving 2 heads of cattle unrefurided but he said that one of these died and immediately this happened he summoned the respondent to come and witness The respondept came and witnessed the dead cow and then he proceeded to sell the meat and kept the proceeds and the hide. In the circumstances the appellant said he was only liable to refund only one remaining head of cattle and that this he would readily do as soon as the respondent had returned to him all his daughter's property. • The Primary Court unanimously accepted the respondent's claim and ordered the appellant' to refund the remaining two'heads of cattle to him. The'basis of the Primary Court's decision was that the appellant had not proved in accordance with Kuria customs (which they elaborated) that one cf the heads of cattle had died as claimed' • by him. Further they held that the appel)int had no right to with old one head of cttl'e until the respondent had returned his daughter's property. Against this decision the appellant lrisuccessfully appealed to the District Court which affirmed the Primary Court decision. This is a further appeal. It is quite clear from the record of prcedings, the opinions and the judgement of the Primary Court t!tat 'the decision in that, • Court was based solely on the method of proof acceptable under. Kuria Customary Law. The assessors who sat.n that Court were Wakuria who elaborated the workings of this custom. They are therefore better • placed than anone else hcwever learned to determine this particular question in accprdance with the dictates of their own tribe. It wi]4 be extremely injudieious for a second apiellate Court to substitute its own opinion on the mechanics of the perticular customary rule to that of the assessors who belong to that particular community. / ..../2. 2 - For these reasons I can only say that I agree with the decision and judgement c,f the Primary Court that in accordance with the customary law of the Wakuria over this particular problem the appellant had not proved the death of one of the cows. He should therefore refund both cows as ordered by the Primary Court. Accordingly this appeal fails and it is dismissed As the respondent did\not appear there will be no order for costs. / - - __7 MUSOMA - L. IVFALILA 11TH DECEMBER, 1979. - JUDGE