francis mwakyanyika vs job mwakyusa 2002 tzhc 2047 30 october 2002

,_• IN THE HIGH COURT OF TANZANIA AT MBEYA ORIGINAL JURISDICTION (Mbeya Registry) 1.. (PC) CIVIL APPEAL NO. 6 OF 2002 t- (From Original Civil Case No. 12 of 2001 of Busale Primary Court, Kyela District Court . Civil iAppeal’ No.'12 of 2001 • FRANCIS MWAKYANYMA .. . . . ..... APPELLANT ;--r‘. Versus JOB MWAKYUSA ...... .“..7 ..... .'..... RESPONDENT ' JUDGEMENT . MREMA, c ’' i. -./ >.• ■* . This ir a simple appeal1preferred by the Appellant FRANCIS MWAKANYHCA. He was the defendant'in the Primary Court of Busale’whereat the Respondent JOB MVJAKYUS sued him for the recovery of one cow which the Respondent '/•* . ‘ -I.,.. * h3d paid to the Appellant’s father as a betrothal price in respect of betrothed agreement between, the Respondent and*the Appellants sister to marry* Als paid together .with the cow to the-Appellant's father was Shs.7»000/= . As it turned out the marriage did-not‘take place on the assertion fc*r the Appellant that the Resporident. failed .to pay to the Appellant father another cow and a bull as full bride-price* It was also asserted A )- • at the Primary Court that' the cow that was paid to and received by the Appellant*s father died after two (2) months. Then the Appellant's father MW AW I SALELiJ MWAMBUSI summoned their betrothed witness DAUD MWASYEBULE and his brother GODWIN MWANGAFIKE to witness the handing over of the carcas (the dead cow); But the Respondent throughout from the primary court to this court has been dt.. ying to have been handed over the alleged carcass, only admitting 'iat he was paid back the T.Shs.7,000/--* Both the courts below were satis Led that there was no iota of evidence confirming the alleged handing ov c and receipt of the dead cow by JOB MWAKYUSA. At the hearing of this appeal it is the appellant’s case that the Primary Court refused him to call the. two witnesses DAUD MWASYEBULE and • GOEWIN MWANGAFIKE. I think this'statement of the appellant is an after­ thought as he is trying to convince this court to call additional evidence in his endeavour to concoct false evidence with a view to bolstering his ** - 9 f - -v - f ; evidence at the trial courts Even if the cow was,dead the Respondent could not be held responsible for its death because the cow was in the custody 1 '* * i . » 'f f " M V" *' A- of the Appellant*s father for more than two months after it was received and accepted by the Appellant’s father# Furthermore, the Appellant did veterinary ... . f not produce r \ evidence to satisfy the primary court that the said <*>w really died* Under those circumstances I am in full ergreemerrt -C-.* with the two courts below that the Respondentfs case at the trial court was more probably true than the Appellant’s case*- On that premise I find this appeal frivolous and vexatious and in that regard I dismiss it in its entirety, wi£* costs# •• - /r.0 . 1 The two judgements of the lower court, which are concurrent, are hereby upheld. In the result the Appellant is still indebted to the Respondent to pay back one-head of cattle (cow), being the betrothal price, due to the Appellants sis-ter breached the -agreement to marry the Respondent. Accordingly it/is^so pronounce'*- X ^ O v' T .-v. ..o *4 r, %./ : 30.10.2002 Vy N s/ At MTDeyafvin ,n tne..presences of. both .p a rtie s. the^presencar i i A« C. MREMA y\ JUDGE