19950406 TZHC Dodoma

l' {,~) C~VIL APPEAL NO• 88 OF 199,4 · ' . '' (ptRdM ;THE; DF.CISI~N OF THE D~ST~CT c·ouRT . '-~, I . F DODOl"iA AT DQDOMA IN CIVIL /fPPEAt NO. ' ( . ~3 OF. 1994 ~"!' > - BEFOHE G.A. URAst•tES~; 1'- \ \ :g:.D.M) • t - - - ...- - •, ,SEFU :RASHID ~· . e O O o e • ~ APPELL.'\NT ): ,: versus JOHN MKONONGO • • • • • • •. !• Rl~St~!ENT ,:it:. ! \. t JUDGMENT tiSOFFE t -~ 1 .i 1f h~ two ~a+ courts found, partners in a butchecy business. ~r. 4 a+ear~ thfse parties were 'lhe respondent would buy some heads 1 I ! i i ~ . of cattle and the appellant would do the slaughtering, sale of meat ,f l and retain the proceeds of sale. 'lhe respondent's main contention was that after supplying the cattle, except for Shs.30,000/=, the appellant~woiUd ncft; 'f~ve him the monies\.re41izeid f:rom the sales. H narrated that in all.he gave the appellant six heads of cattle. On ' , . the other hand the appellant ·generally disputed th~, respondent's I case and ~cttl8-lly raised a cou..~ter claim. The gist of the counter claim . is ~et ' but . it the well reasoned out judgment of the learned , I Principal District Magistrate thus:- , ·. , 11 ilHe said, that, he gave some money to the respondent, I ~ sb that he could buy cows. He said, that he gave him,. sLs, ?9, 000/-=. That out of this m;ney, he ~nly bought ' one cow at a value of Shs.2?,00Q/=; and re~ined with ~1.1~;.1ance of Shs.52,000/=. he gave h~~-d sJs •. 70,oOQ/= and that out of thL,!mount', ·h•e bought two Thal r. 07/b?,!?r cows, and :remained I I with a balance of Shs.21,500/=• He · ,; ai1:39 ½laitled \that he gave him .48 ~iece~ ?t skin for sale, ~le, ~&·.:ies,ondent never ~t-e(\~:~~ the ba.1.:_a·nc.e,e·~~ ,r· .(-., ,if ' ~ <:i:y,•·,,;;, - <4\:J~~ney ·~'ti't'':of thn.t whieh he • ·~ • '. ( I PrtI:; him,.a'it~t e.lso ;or "tAe \ e 2 Tne trial primary court wJs satisfied that the respondent's case ·::"'.E: well established on the necessary balance of probabilities and accordi- ngly en'fered a judgment in his favour. An orde~r was accordingly made that the appellant should pay a tvtal sum of Shs.,165,500/= plus costs of the suit, in full satisfaction of his claim against the appellanto Disatisfied the appellant appealed to the District courte The latter Court took the view that the respondent's case was. established only ' to the exten'.t of thettwo cows bought from bne~ Saji~'o (PW3).; The said ~-;. . 1 court further opined and held that since tifiis was a partnership business in whi~b the· value of the two cows waa She • .57 1 000/= then . th~ .sum should be shared equally between them with the result that each party's entitlement in the whole matter would be only Shs.28 1 500/=. The appellant is still disatisfied and hence this appeal. On the other hand the respondent appears to be content with the District Court judgment as there is no record that he has since then preferred a cross-appeal against the said decision. In both the memorandum of appeal ~din his oral submission, the appellcmt is mainly attacking the District Court decision to attach weight to the evidence of PW3 (Sajilo). According to him, there was no proof that the respondent bought the two heads of cattle from the s,d r1 PW3 and therefore thnt the order to pay Shs.28 1 500/= was illegal and uncalled for. Perhaps, I may, from the very outset, ;; say that both courts believed PW3. Their belief of the witness was mainly ba.sed on credi- b:· ~;_tyo As ,this coup_t has repeatedly pointed out,. an appeal court will not disturb :a f~ndin~ of fact based on or~ t;esti~~ny unless it· is manifestly unreasonable - see the case of ~lata Msangaw~ v. He!l!..z Mwamlima 19Z2 ~~Ro'!'..!.._~0-~..2J.. to mention just one case decided by this court on the point. In the instant case, I find nothing unreasonable in the concurrent findings of the two lower courts regarding the testimony of this witness. In his evidence of 18/05/1994 before the ; ~t, Shso5?,000/= f;)r which, according to practice, it was the appe- J · -"'.:.t who ·,..,~p .pU;)PQSt;Jd to _pay him. Cle-<> o 010/)0 ,ct> • ,, j_ :·'.•: 3 passing, a general look at the record will ' parties do ntt €:@peat to~have kept proper to day business transactions and whatever was realized therefrom. It appears theirs was a confused and una- l : ccounted for mode of business operationL Perhapc.; they had better I been adviifd of t1l,~ popular Swahili say,· g that-,11£ti-fshara bi?-a,... 1 dn.ftari hrps~a bfla ~abari 91 which coul .· 1JoseiJ be translate~- to mean that.business without documentation fails ¥ithout the knowledge of the. cohcerned. · t.I 1 :. i onh;he whoL,; · though, I am satisf~,~d that '.:\£fe District Court ,·,. decision i's sound and there will be nothing by this court to fault it. The appeal is accordingly dismissed with costs. 'i, / .Ji.: ·-/11~ ~ L: . ~ (J.H. MSOFFE) JUDGE -- 06/04/1995 )( \ Delivered~. Appellant - Present. Respondent - Present.