20181112 TZHC Mwanza

_, THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY) AT MWANZA PC CIVIL APPEAL No. 50 OF 2018 (Arising from Civil Revision No.5/2018 in the District Court of MusomaOriginating from Objecting Case No.3 of 2018 at Mugango Primary Court) JOSIA MAHENDEKA DEOMAGANGA YUNIS BABLAS \\ r - lHe - .appe,llant /1 appealed to this _ court following his dissatisfactiorfwith the decision of the District Court of Musoma in Misc. Appeal No.5 of 2018 which was dismissed for being short of merits. The appellant filed an appeal in this court containing three grounds of appeal as follows:-. 1 1. That the first appellate court erred in law and fact in interfering with and altering the decision of the trial court in objection Case No.3 of 2018 which was based on well analyzed and evaluated evidence. 2. That the 1st Appellate Court erred in law and fact in failure to consider distinctive features differentiatiorf -,, the appellant's cows from those ·of the others which failur~',pc:casi6n,ed <\_;(-'-. '~-- ' '- )\ a miscarriage of justice. . \\_ -,\ -./ //,,' ', \._ \'-\ ' ··.,_:·- •. ,, //~-.. . .~. · , ., <~~ \\ At the hearing, Mr. Tugl.ft0-fe:Ornci'd>courisel represented the appellant while the ~)lQO~~eqt ::~pe~red in person. /'\, '\\.'-., '\.,,···-., Arguing in support of(hi~':> groo~"as of;\1ppeal the appellant /,' \I ·..._ {., \ \ /: ',, - ,_ -· opted to combin~,:-the\t\'.YO grQU(ld ofappeal. In his submission, ,/ \__ \,\ \\"' ·,,, ·,,_ ' the learned counselJqr fh.~·-·qpp$11ant , submitted that the District -;-.... \., ...... _____ .,..,-, Court of tvJ~~-ma\err~d.)n law for interfering and changing the . { '\,'. '\··.. '\ , . \\\ ""-::\ . . decision made,/by--tb~ Rrimary Court of Mkongo since the /~:~-~--:-------~. . _ ',. •,," ',__ ., , ---,;, ·---~-:~> . evidJ~nce···was ri'0J•well analysed ahd the marks on cattle were \ .\ '-\_\ ': '• ·- ·,\ '~.7 . not ais,tinguishe,d from the other marks. The learned counsel ~~ \. - submitted:·tur:t~'er that the Primary Court in its decision analyzed thoroughly the indisputable marks of the appellant's cattle which were referred to as UMM. JMIK, JMK/Ruji, TM, and ONB. -M-r. Tuguta submitted further t~at the trial Court had visited the "_Cattle fold " (Zizi la Ng'ombe) at _Nyakatende on 2 27/04/2018 and found the cattle with the following marks: JMIK, JMK/Ruji, TM and ONB. The cattle found with the said marks were six in totaL He continued to submit that the trial Court decided on the balance of probability and found that the six cattle belong to the appellant. The learned counsel added that the Primary Court's decision was based on reliable /: evidence. In support of his decision, Mr. Tug_uta:>c::j_ted the case . ',,_ :·· ....."" \., \... /",\ ......, of Mohamed A Issa v John Machela ~,Yil._Appeal"-No. 55 of . \\~~·-,,,<~................,.._. \. °',,\ ",,. . , . 2013. \ . \ \\ ~->--\_ \ .\ /r . "'-', ',, \ \ . The -,earned counsel ~9r <tn&,': ppp11i:~r:1! ~,J5mitted further ( '•, ', "\ ' ', ·~·-~ .... ______ ...\\ that there was no any Jl-!stifiG,bl~ reqson which rendered the //.,,~--' >'; --,,,<·-.._.. \-<>>·-:,-'', District Court of Musqma -to reverse the decision of Primary ', \ //· ·· .. , ·,. -- Court as the PrirJrO[Y ·~~-ol!rt Wqs-. in.-ia position to question· the ·- -. ' ' ',, \ " witnesses an9 __pb;erve .fh.eif: .dJmeanor while testifying. Mr. /./ ' . \ ' ·, " . - Tu_guta act~~9 thpt the·,~rimary Court visited the "Cattle fold-" . '\, ',,.., } ~- -.. ._ \I . (Zizi la~-Ng'ornpe) c;:i°rfd-identified the marks of the cattle in ;~-- ---~- .... ,, ·,·~~~ ""--.,... \\\ .'\'",..._, -.. '' , .. . dispVte. Ac:c:·ordinQ--to the learned counsel, the trial court . \ \ \\ \ ' . \ \ ', -. I analys~d and\evaluated evidence adduced and reached a " '·.., I . ',, ·,,_ /)' . fair decisi'ortirt accordance-to the circumstance of the case. The learned counsel for the appellant submitted further that the appe.llate court is_ not in a_ position to· determine evidence given .by witnesses instead it has to rely on court records. Therefore in interfering the decision of the trial- court, 3 . the appellate court has to do so with great caution. In support of his argument, he cited the case of Marko Petro and two · others v Daudi Kulwa High ~ourt Land Appeal No. 73 of 2015 (unreported). The learned counsel for the appellant,. concluded by / /. praying for the decision .and order of the· Q_istrict Court of Mwanza to be set aside and uphold the cl~cjsion ofJbe Primary \\,\\''~,.,; . ' ---...... '' ' '. ', Court with costs. \ . ··, \ ' \ i/1·---"•--:-...__._.__ -....__ •..._"\ \.. '· In reply thereof, the l)i \esp:onq:en+:·-submhted that the // \,\ '--,....,·'.,,_, '•-- .. , ·:__ '',,, District Court Magistrate ,,rightli·dedde~ the Misc. Appeal No.5 /.t<,_ -·-,< ·,.\ \."\.'- ~,, ' \ , ..., ...... __ ,--\ I· . , . \ of 2018 that the 2nd respondent Who. was the wife of Mahembe \ ·. . /'.. ··. '< Masinde (originayaefe•t:1'dantJ- w0s iri better position to identify the propert,~es_. whi9h \·tG~Y~-":bcquired together. The 1st ,/;- ·. ....",' ', ' \ '~' ' . respondenfsubrhitted tridt~oncerning the Mara traditions one - ', ",~ II . \ ' • can beve, c'aftle' but not .a. cattle fold / therefore, Masinde / · .. ··.,.:·.. . ', . ·. dedaed to .send \ ,_ .' .his.cattle ' to Josia Mahendeka, his uncle. In '• " the ;\tR?spo.rident' ', ', s opinion, the cattle which were attached ~ (caughtf" by- /the court broker were the property ·of one · Masinde. The ~ st respon_dent proceeded to submit that the 2nd respondent is ·the one who identified the cattle· and she found his cattle had more than three marks while at. the time their 4 cattle were sent to the appellant the cattle had only one mark. Therefore the· appellant added new marks and the st-amp were made on top the previous marks. The 1st respondent stoted further that the Primary Court found the cattle with more than one mark and the 2nd /, respondent identified six (6) cattle by their/co.lours '"., since he ''-.·,. knew them ·since 2011 two cattle were n1t-?t tr~'e::~~ttlEf~q,ld . . \ ... •., ', ·~ ) \·, .. , In the view of the 1st respondent, the •. A~·peU:oot .' . .. waf·a-· ) mere custodian of the disputed cattle "~q-<;f nor)~ . ~yJn·~r of the . ./.-,.~ -....~.,. ''(,_,:·,\\, \\\ \ v-" . ·• same. The 1st respondent stJ~r:n1ttect:·,{urth~r---:'that Mas1nde /0. \ ". ;,.,·\_..... ·. ·•-•----~-~:'"··\ \>:-,. ,t .· , decide to testify against the·2'hd respondehfoecause they were -~ '"- ·-. . \ already separate9 anlfh~ dic}rf~t o8]~ct when he was_ cross 1· ·\ .., '. '. '. '· <,., examined by his c_hildf He o6nclu'aea by asking the court to / \. \: '· . '· \. \ (. dismiss the preserilJ:ipp'e,<JI .. with).eosts / as the cattle in dispute \ '- ' ........... ,. belong to 2~~~;;pond~nt, :~-~ / ' ', •', "'\· 's., . j~~-~-~->"-- -~~. z-. ·-. - . - - - ~ (· -. ~-.>") .. /On --n:ec_,_p'0rj-,,,.the 2nd respondent submitted that the eight. t -i '·· . \, \·\. "'·-.... \ ' catHe\ in. disr:,ute\15elong to Mashemba Masinde. The 2nd \ \ \ r~spoAtj~_r:t!.>:~~l'nitted that the disputed_ cattle were identified by herselfheF children and her brother. She argued that her husband (Mashembe Masinde) sent the cattle to Josia Mahendeka who was allowed to take care and milk them only. . The 2nd respondent submitted further . that Masinde failed .to ' . . care of his children thus the Primary Court ordered for attachment and sale of Masinde 's cattle so that to maintain his· 5 children. The 2nd respondent concluded by praying for the court to analyze the evidence on record and dismiss the appeal.· After· a careful perusal of the record of the case and the final submissions submitted by both parties. I sl)quld state at the ,( <'•. outset that, in the course of determining this ·-¢ase I w,ill be I . . . ": -.. . _ "'·.,\ -.., . guided by the principle set forth in the CCJ$e'ut Hemeai Said VS. / ,\··.\. ',,,,, ·-,, ..... ··· ........ _. . \\ ,/ Mohamedi Mbilu (1984) TLR 113, ,Which reqwires,:"'~tbe person '\.._,,>·,;\, \\.'~ , -,.·,:, whose evidence is heavier than:tQaf'q( the\·other is the one <--··,. ~ ~~~---.. ,,. . . . ._~~.:,:.<~:-\¾.. . . \. '. ___ ,., who must win "and that pr9r5quna~q in -fh~e ~2lse of Jeremiah ' ,;..,,, '-i.. '\\ '' . -. -. Shemweta . Vs. Republic~·J985jr°LR _/_·, .. 228~~:t-hus; \....... '\ ~-'.,~ "where doubts are - ·,., :, '-.\. created in evidence, tf1e .sam/e: sho}Jld Be resolved in favour of / \ . /:· \ \ \ \ '.- '•. ' ' " the opposite partY:'\. ......., \.. '· ·. , !, - _. 'i In the '{frst i)Jace, I . am in agreement with the correct ~~r;•~~=-•••••••.,,,,_....._ \\'-',,, '-.,/ ',, ' •• ,: ••• -~-~~-~r"', 0 sub~issions_rqadEi·qy the learned counsel for the appellant that l, \ ' the \appella'te c~urt must be · cautious when deciding to \ ' \ ..,. -....... . '1 i interfere-.JheJower court's decision as was propounded in the - case of Edwin Mhando v R [1993] TLR 174. It is a settled principle that the second appellate court has· to deal with the question of law. But this appr(?ach rests -on the premise that findings of facts are based on a correct 6 appreciation of the evidence. In the case of Amratlal D.M t/a I Zanzibar Hotel [1980] TLR 31, it was held that: · " An appellate ~our/ should not disjcb concurrent findings of fact. unless it is clearly shown that there nos been a misapprehension of the evidence, miscarriage of justice or a violation of some principle of law or practice." ~ . In the present case, it should be tfl•G:ted th0t,the t:)istrict .f. - mer: . d th e d ec1s1on C ourt o f M usoma revise ~~d-~e-.Jh~if'o. . C --~~//3 o f 2018 and upheld the decision in th~rillGG,siuse No. 27 of 201 6 and ordered the e~fi~h~ecision in the matrimonial cause. ·~ . The findings o( thcc.t\tco'u,!;t?of Mugango in Case No. ~' \~. \"l 3 of 2018, the appell<~nt 00Je~_!~/:li-that the respondents did not . place the~~at~ ~ l a ~ f e court proceeding at page 8, a witness ~tlii1~--t-~a~6sinde had placed his cattle in 20i 1 ~ to one Jos·i~" ' ~ (the- appellant). M\s:t~endeka I The 2-_nd respondent who\~ w, of~ne Masind~ had also . testified that they placedlneir-..cdttle to one Josia ~ahendeka for'custody. I have also found~he record that onJ of the witnesses was the child of Masinde who olso confirmkd the evidence which was adduced by the 2nd responde~t during the trial. I am of the .. l fir~ opinion that the said witnelses were in a position to prove . 7 I that the cattle were placed at the cattle fold of one Josia Mahendeka (the appellant) for custody only. I have also found that the appellant (original plaintiff) at page 2 of the primary court proceeding while trying to j.Ustify his assertion on ownership of the disputed cattle, )1e testified that //\. t~e cattle had more than one mark be~aus'Et"t-1"~ had bought \., ,/",, \ '-, ' . them with marks and he added ot:~~~L.,. marks.:·,<2n }hem. \\\:'·,..,,._ - -.....¾'-,. ··•-.,, '·., ./I/ However, the appellant did not call the \~eller''tQ confirm his . (.,/",, \. '"•. \<\ / _, -•,·.,,, ~.,.."·--.. •., '· assertion. Taking into account . / to.at...... 'th.~".,"'-.,,selle,r,\did.)not ·.. ··,._ \ '· appear \ \ '•./• before the court to prove t9e app~Hari:t~s~:"qss$rtion, the act of <./- '\ '\_, . . \, appellant of stamping sqr;ne cat.tie brhtop of the existed marks 1/', ~~>- "'\·,. :\,.. ',,,<1''""-~.--;1 raises a lot of doubts ,on the app~llanns· right -on the disputed \ •. /' \ . cattle. \ : .... ../ //·-~·-..\ . ;_ . . .... I find/no weight in the appellant's assertion that the cattle • ',. "'· ! ' ' wer1/~~~:~-~~a:·~rf~-~th<Jt -the re~pondent failed to identify the catt\~ by fh~ir_ marks. It goes unequivo~ally that, the appellant \ ·.\ '\ \ ) temp~}e"d with, rhe ·marks of the disputed cattle. Therefore as I ','~ ) have staled-earlier, one of the canon principles of civil justice· . propounded in the case of Jeremiah Shemweta vs.· Republic (supra) is su~h that "where doubts ore created in ev[dence, the some should be resolved _in favour of the opposite party." In the present matter, the appellant's evidence created a lot of . 8 " doubts, and thus the matter has to be resolved in favour of the respondents. Consequently thereof, I am satisfied that in the instant case there are no extraordinary circumstances that require this Court to interfere with the findings and decisiox1s made by the ,/ ', two lower courts as the ~espondents' evidefic~-.overweighed ·- ·, the appellant's evidence. ' ,,./~ \\\ -,.;) ', . { Based on the foregoing andlysis, I firi9/no· merit on the ,,,...--,..... _,__ -'·•. \, ,, '\ '' < entire appeal. I thus I uphold tfre,_d~e~isicitf::~f th'e·-Gistrict Court of -r·. . .\.·~,. ,. ,.,~ -,.\ ">-. -. - .. Musoma and its orders f6rtexec·ution:· Fof' that reason, the /"' ·,.<·",. ·-::· ~ appeal stands dismissed wi'th cdsfs.Jt is 'scb'.·ordered. f 'i • ·.\ ' ' ~ \ '\ ~' '',, • /' \ \ <'. • •. " · i ' Dated at Mwanz6. this:::~":~~ay-i~ovember 2018 . .'•A.Z:·MGilEKWA I .. JUDGE 12/ 11 /20 l 8 · \<. ",. \,.·\ Delive'r~'d.in C~omber in the presence of both parties this date 12.11.2O1s:·· · · A.Z.MGa~KWA JUDGE · 12/11/2018 The right of Appeal is fully explained. 9.