19790330 TZHC Mbeya

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IN THE HIGH COURT OF TANZANIA

AT MBEYA (Pc) CIVIL APPEAL NO.14 OF 1978 (From thé- 1ecision of the District Court of Rurzgwe at Tuku yb ' in Civil Appeal No.102 of 1977)' GEORGE MWM4ALUSI 9.4 ... . .. . .. ...... . . . . . . . . . ... . . . .. APPELLANT versus KANGAINA MWAKASAGULI ................. . ... . . . . . .. .,. ... RESPONDENT

J U D G M E N T MACKANJA,R.M. - EXT. JISDICTION: The appellant is challenging the unanimous decision of the trial court which awarded the relief the respondent had sought. That decision was upheld by the first appellate court. The events that led'to the present appeal are brief and may be sumarized as hereunder. Kangaina Mwakasanguli, the, respondent whom I shall hereinafter refer to as the plaintiff filed a suit in the Ikama Primary Court seeking to be restored to him two head of cattle. In particular, he averred that he was_cia ming-en tOIi " and a ,heifer born -ofthe said cow. According-.ko him he had pewned the cow as security for a loan of shs.300/= which the appellant, whom I shall hereinafter call the defendant, had advanced to him. It is on record that during the pendence of the pledge the pawned cattle gave birth to a heifer. The pledge was executed on 15/6/75 and, according to the plaintiff, no specific time was fixed for the repayment of the debt. In the course of time the plaintiff pid shs.100/= towards the repayment of the debt. To this end the testimony of Anyelwisye Mwalyubu (P.W.2) lends credence to the account of the plaintiff. In effect the defendant's account conclusively corroborates the plaintiff's case. For apart from minor variations, it is the defence case that it is indeed true that the plaintiff had pawried' his cow as security for shs.300/= he

received a loan from the defendant. His withess.Jusitin Mwalupongo (D.W.2) confirms - this. • ......../2 Upon - - 2 - Upon this evidence, which. isso çleareyen:to the nacked eye, the contention in the petition of appeal that the plaintiff had sold the cow to him is an afterthought fraught with fraud. What I find as proved, which the two lower courts also found as a fact, is that the transaction between the litigants was a debt moving from the defendant to the plaintiff in consideration for an undertaking by the plaintiff to repay it and secured the loan with a cow as•• a.pawn. The defendant contended before the trial court, which he now reconts, that the pledge was to subsist for four months and if the plaintiff had failed to repay the debt the pawn was to be foreclosed in such a way that the transaction became a sale of the pledged cow to the defendant. Even if this were so, there is no evidence as to when the pawn was to mature because there is a dispute as to when the defendant rejected the remaining shs.200/=. Under normal circumstances, he who advances the existence of a fact is the one who has the onus of proving the existence of such fact. In the instant case it was the defendant who had to lead evidence to establish, assuming there was an agreement,that the pawn had matured when he declared himself purchaser of the cow. This he miserably failed to do and the learned

District Magistrate apty points this out in his careful and well-reasoned judgement. In the result I would have dismissed the appeal. I would still have dismissed this appeal on other considerations. While I was studying the record I discovered that time was not.the essence of the agreement between the litigants. They generally had agreed that the cow could have been restored to the plaintiff on full repayment of the debt When the plaintiff was ready and willing to discharge his contractual obligations the defendant purported to vest the ownership of the cow and its off-spring unto himself. In so doing he soiled his hands and he cannot now, as the wrong-doer, expect the ccurt to accede to his fraudulent claims. Minded as I am that the defendant received justice in the two lower courts below, I consider this appeal to be doomed to fail. It is accordingly dismissed. The defendant @ the appellant, is condemned to pay the costs in this court and in the two courts below. O14ACKANJA /

RESIDENT MAGISTRATE 30/3/79 Order - — Order: The record of this appeal, together with the judgment, shall beransmitted to the District Tukuyu,•hO at 11del1ver he .. .i ..jüdgment to the paties. C .. :• . :;. '' ': '--' j j - 3 • 3. M • MACKANJA, RESIDENT MAGISTRATE — ON EXTENDED JURISDICTION 30/3/79 . .. . • .. . .. . . - . :--. . • ' •. . - -. •:-. -• .- - - ,-: T •- . '-.. c:I •. '- _\ ;. • . .. ... . . . .' ,,•, -• j ... ..• . .' • . . . - . '-.-• - :; r•'''' . .: -- r -- . - • . . . ............ -.,,, .) . .- . ,- .. . • '-, . r<-.''., -r. • •- - .. -•'- 2 -'_ ;', . V. .... •i..,.. c, ,- - .•-.- . - . ,- • . - - . . • •• .. -.: . . . . . -, ... . .... - -. . - . .. • -; . . •-- - •; -.2-C. -- : •- -- $.:C ,.._ _- - .' .• •. . ''.+• ). y.J - ij4 ..'. •--: -•;. • - • .'• :- •.-• .... .- . • - ,--:.'. • .-, .4' p I