19761231 TZHC Mwanza

IN Tii .IGh COUhT OF Ti211NIit T IJiu C (i-c) CIVIL dx-L P0. 295 OF 1975 (From &i eci.ionoi' the District Court )f harna at oiusoma in Cii1 qe0,1 Pc. 13 of 1975.— Before J. L.. iibnkc, sq., i)i.t act La 0 itrt and 0:1 inal ZaneLki rirnarj Court Givii C .e Nc 124 of 1974) 1jMUGJh G LIkO • 0 • • 00 0• • • 0 0. •• OOS • • 0 LJi.J J versus S - iiUGaI h LJh . o .o e •. . . , . .. . . •.. cebi J J Lji)(i1 iiiNT IOX11.i&tILJ1, J In the Frimry court of LUODma Uihtriát at nakthe'rspOfldeflt Muei iey uu tnt. caint t iat I mo ci timing a cow anu i t s caJJ tJ1A1G a u oea ic tu to aim for safL eep.u, sri hai bet if. in bapert of r c1]-Ifl bn. toiu the Primary court that at Ll m. timo ye B hs LOO/= to ncr 1t uncle one 1-wasj with a rust ta t r buy i ow fi er This ws done and the cow so purchased was teri at.ier i'queat by both her uncle Rwasya arid harseif to tha a,peflent for efe icJoing. Th pe1iant and. Rwasya wre b0th's and in fact the appel.L:nthacm in his care otner cttie oelCflgi45 t Rn sju Ti 'ponLL it hact that when her uncle hwya umed ss 'ent to t thL.. Cvi arc.. thcir calf, but the appellant refused to hanu them over to her say in 'tiiht hë had no claim to any of the cattle in filS coma, In reply the uppeil : mat a b rees. that one day Rwesya his late brother took a cow to him for safe keeping. ns he alre'..j had his other cattle he took it dnu when this was done his son Charles was present. he denied that whzia .kwasya brou 0 ht this cow ho as accompanied by the responcnt or ts.t anyt i es said to nim to i iuictc th t the cow belonc to tji ronent. To prove his point he saia that when Rwasya died anu the question of inheritence of his property was being determined, the resooneent was askea whather she had.ny., cuims to any part of the pro'erty includind tht Uca She replied openly that she had no such claim. The respondent confirmed this when she was cross—examined. On this basis the apellant said that the resp3nent 'S oiims were ialse tna urged the court to reject them The Primary Court aiccptec.t the appellant's case and rejected the respcnuent tS, accordingl0 her claim was unanimously dismissed. 1 he respondent successfully aeeleci to the district court. The ..istrict court helu that the 2rimz.,, rr coui t should have o.ccc-ptod the evider e 6iven by the responuent 's witnesses naielj SG0 kU&in (P'J. 2) anu (P..kJ.l) who said that they hrd hauya say that ne had bought a cow from the rsso:nocnt. The district court was of tre further view that th, ppllnt' only reason for rejectin 5 the raspondnt" claims was that he wanted to keep to himself all the- cattle left by the late hwasya. accorair. , ly the responuent's a:peal was allowed. The appellant was orered to ive thu reecnuent the cattle she was claiming as well as the costs of the appesi. The appellant then appealed. after considerin, th whole eviuence in the case I was u.tisfied that the unanimous decisi:.n of tue Primary Court was correct. In my view the only link between ho r-pondent and the cattle she is claiming is tue -fact that sue aid. ij.y :i000ripanleu 1i.r late encle 1wasya when he took the oribmnal cow to ta appellant for .aocping. The evidence of -Nyango and kambarade can not advance the c-ass any further because they only iierd Rwesya say that he had bought a cow for the respondent for shs;b lOO/= whack was own money. I tnouiit this CVjdenCC was a little suspect fc o oasis vss provid as t .:dy Rwesa should have ./2 2 volunteercu. this infornntioii to tan two people who •eru hOt witaesss to the tro ancti n want is murs , _ the r6 are vxl oth e r cunsilera- tions nio t nd to , uurt t el1iit ' ce an hi u' t ~:r eGjcndent has no plaijr, to any f the cattle in h is bma First 0± all I rind it oud tha t neithor hvya ior anroif fuui -id it inpui nt to icform - the aellant that the cow thy ohuht that day ans the ruc,nd.ent'•s pro)erty. T4e aeliit ridiitly :ssumon that #wasya ans wt.ing to his stoco 13ti' i±dt [fldrsuo d 4y the reSofldent aecined to taia tan cow soon after iLwasya 's canth if the original reason for tOkiih0 '±t to thu O)Oellnt 'S anIht.Stead had Ben tt s4q, hO4 no place of n0y ewn to it Did sh, s uddenly 5 eta t - ? a6ld i±IIIfliLIO of-something allie.I to fraun for hnisya was oat of thovay. ThirwLytIio respondent was spociiicaliy siao. after—hetis•'s acath whether SilO han any claims on the aeceased's cattle tnen in the aopellont's care. She said she had none. hihere then did this can she is claimin come--from? It is for these reasons that I dd nt like th3res 1 oindenL 'o claim and tlloubiat thit the unanimbdb anod.dion of the x1 rimary Court- o-as more in aboord oith the deneral rdn of the vinence. it is in-fact supported b' the finuin0s of thelocul roconcilliaticiw Board which initiriuly nanuled t hu niiute. Goinb strictly by -tnn aicience on the rocord., I do not think tan hisirict court had dooh - 01'ound-s to overricie the ueCiSiofl of tie e1.•rs in both the board ann tho Primary Court. ACcordinly I ollo StniS 0 Gal with costs. :iiio j;dgement ahd oralm of trio uis tr i ct conrt are set asian dncL rantcre the Juu.ber'nalt f tnt. r jjiar0 coar b Q is m& a , thean i t' claims