19851114 TZHC Mwanza

IN THE HIGrI CCURT OT 'FANZANIA ( H. C. ) CIVIL APH,A l NO, 23 OF 1984 (From th·e.: deoision of· the District· Cotirt of Musoma district at Musoma in.Civil CaSte No. 78 of 1981). • • • ' I • L STIBE: SUR.US J J ., t, • • • 0 0 0 c> • 0 • • r, -: 9 ~ e .•· • • .• • •. e • • • • • • • • AP PEtLLANr S M@S PiA CHOG:E.RO) Versus OHARAMil:\ N!1LRJWE'RE .•00000••••0••••••·••·•••,••••• RESPONDENT. MUNYERA 2 J. The respo~dent wa~ tho plaintiff before the District Court of Musoma. He .sued the two appelle.nts (and another who has not appealed) _for recovery of ~:hs. 20, 000/- value of 12 head of c~ttle hf said the : , 9 ppel13nts· (ari.d their co-defendant, the third _defendant) had converted. ,The facts were s ..;raightfo:rward. It was the respondent's case that he had a her.d of 67 heac:. ··o'f catt'1e· ·entru,sted. to hi:3 bcnther Faru (P. W. 2) •. On 31/8/Jl the cattle wer"e' ··311'eged to have graztd on the cassava shamba of the t~o appellants. They seized the cattle and ijent them to the balozi Maruru Kyagwene (P. W. }). Faru (p. W. 2) wa~ informed of the act and went to the balozi. There he .admitted responsibility. . . . . ba_t.k the herd 3nd asked the balo11i to have the tamages assessed. . He demanded ~o b~ giver.. Th~ two appellants and the baio..zi (P. W. 3) .refused to hand back the herd, instead they drove them to the chairman (third defendant). The cattle remained there for several days. li'inally the respondent's ••o-\Ie:r, Faru (L W. 2) went to demand. The ch::1irman ( tte thirtl defend:rnt) demanded Shs. 620/- cost of keeping t'.1e cattle. i,,;:cen Y.:n':.1 hesitated the ,chairman took one cow and sold it to defray t~1e costs. The c:ittle. were handed back to Faru. Immediately the aespute 3.rose, thE:~ respondent and his brother Faru (P. W. 2; . ' f calimed their cattle were 67 in number but they recieved back 55 only so that 12 head were missing. Ont he other hand the appell3nts (and their co-defendant) argued the cattle were 58 head in number, one was sold by the chairman (3rd defendant) to pay costs,.and 57 head were handed back to the respondent's brot:1er Faru (:!:·. \v. 2). The trial magistrate fou:id the cattle seized. were 67 in number and those returned were 55 head, 12 head were missing. He pronounced judgment for the respondent as per plaint. The two .J·ppellants bro~ght this appe3l but the third defendant (chairman) did not appeal. Their main argument is th~t there was no evi- - defJe that the c~ttle seized were 6T in •umbe7. They weYe 58 head. ,,r IiLl'.'eadi~t the evidence> I foand the~c was. n• de~pute the aPFellants had 'ieized the l'espo.l'ld,ent 's cattle :and i:ook them tq the t_hird d8fend:.-inl i l~?c.•c.••o•••t1••••/2 • .' • I ' •\ 2 - where they were detained for several days. In my·opinion there was no reason for detaining the re~yondent's oattlo, It was agreed that 1s soon as the ,;two appelJ.,rnts . . took ': {he . cattle out of their shamba the respondent's . ·,. ,. ·. '' brother went and cidmi tteci thc:1t the. cat t.l e were his'.,· He ac_cepted . 'linbili ty ,J f' to damages. . ) The 1ppellants should have called peo~le io witness•the affai~ and let' the own~; .t.ake away '.liis' C,,it'tle. ' Eut they decided_ to' take them awa:·, They did this at their own risk and if ,.:ny of the111 was missing they had to be held responsible. The queBtion is _how many wi3re missing~ The responde:·-~ and his broth~';rrFsiru - u,. ,t 2) sa:id the· cattle seiz·ed were 6Thectd and thc.,se 1 returned were 55 1nd (67 - 55) 12 were missing while the appellants and their co-defendant said the cattle s"~'i'~ed ·w·ere 58 1 one sold for cost·s·· and 57 returned to the 0wnerso But when the appellants seized the cattle ··-'·· and decided tp tn~J them tq the cha~rman they did not call people ~nd have the. cattle (l?vUP;t(•d. · 'Therefore in no 0w3y the respondent's claim can 'be refuted. The ti-1:rl m~gistrate was .correct in_ finding that the ap'r:ell~nts (!:lnd their co-defendant) lost :t~1e respondent 1 s l? head of cattle. l dismiss t.he apped/ with ·costs tc the ref'ipondent. J :: ,' MUS.OMA •. .i' : ,., 14/11/85. Ii ' ' '' :i ·,•·-, .. ,,: ·•• r•. :· . ·", .._ r ..