19840406 TZHC Mwanza

FT IN T:: :ic;iI C:;HT OF T4NZNI AT (pc) CIVIL PF'IJL NO, 6 OF 1979 (From the decision of the District CourtoC Pukoha District in Civil .ppeai No. 71 of 1978 - fo:ce A.N. Russeta - District !Jagistrate and 11Swer.a,. Primary Court Civil Case No. 47/77) CHRISTIAN NY.ffNIfftJL.A : : : : : : : : : : :: : : 1':::::::.t : : : : : PPLLfNT vRStJS: I JLFXJ1ETRL ItJL : :::: ::::::: i: : ::t*%:: :: : iSPODiNT The:pPe 11 ant was the. defendant inThwera Primary Ciurt. The respondcn aed: him ca1miig a s1lare o ,Iha 'oenefi -ts he iflcd the . I .cc1lan't had eno9-ed Out of a cow 1f -1 bhind by their deceoscd :èa'chcr. It agrccd that they are full 1rothxs, t'" a'll'nt is the lder When their atncr died he left a cow in t he i ncs of iepplani'y thn the respondent was still an iflfant). The dcèased fathe declared that these two brothers should share the hnits dcrivda from the ôow. . It wa agreed that i4lile th cow was in possesai&i of .ths apul'ant it .piduce two calves (in succion)but'th of - hem dleai In the end the mothr cow also died.. The respondeitTs Olaim was that during the period t1ac. calvea were alive the appeflant got milk from the èow'and when ths calves and 'their mothei' did the appellent used the meat alone. On that ba'sis,he. claimed a share inthe milk ad meat to the value of she. 8501=.. Jn his defenqe the appellant argued that he obtained no benc±'its.from the cow 7 if anrthing, he incurred the trouble of looking after it. That both calves were ding before he could get aiiy mi1 from the cow. When the calves died he shared the. ra3at Gqully:with the: resp.ondnt. When the mother cow died th authority ordrd that, ite. burid so that he got no meab out of it. The tiai court unnimoasly.dismissed th ppellant'odefencé and gVC judgment . for the rëpondent as claimed. The appellant filed hppe.al with the Diatrict Qouxt of, Bükoba and partlr succeded. Th 1arned District i-Jagistate. ruled, that the responaent wa entitled on1 to.the sha'e of the milk aAd the net from the two ólVGs which..the appellant has used alone. He awadéd ss. 2001= dr meat and he ICO/= for milk. bs .f or the mother • cow, the .±strict Magistrt: :i.: view that since there ws evieii tQ the. effect. tht when i -5 died the. authority had ordered it be buried and it,was baried:,he appellant be.nefitd nothing from it. He:.d ismisse.d -bhat part o'f the claim. The appellant still was not set.efied, lit appe.led further to this cOurt arguthg that h got no benefits whatsodve aid should not he tdId to cóthpensate respondent a single centi It was unclesptitcd that when the two calves died thir Fat -2- wa a used. The :ellan argicd ho shared ially with the rosonnt '"tt the lattor denied. If fei the appcllent to pr his sor H did not discharge thecn as h called no witiss td supDort his claim. In that case the respondent, who had the property in the calves, was entitled to a share in their meat under whatever circumstanos. With regard to the 'nilk it is normal with cattle that whoever keeps and looks after them is the one who enjoys their milk regaz'diess of their cwnerships in this case it was agreed the appellant was the one who was keeping the cow. He was entitled to its milk. I vary the decision of thc. District Court by setting aside the award of shs. ioo/= for milk. The appeal is partly allowed. Th appell*t to pay respondent shs. 2OO/ plus shs. 4 8 /= costs in -the Primary Couxt. ach party to bear own costs in the District and this Court. Hi BUOB :. F. 4/. • 6th !pril I98,i TtJk(' • / -