19730629 TZHC Mwanza

IN THE HIGH COTJ1T OF TANZANIA AT MNZA (pa) CIVIL APPEAL No 48 OF 1971 (From the decision of the District Court of Karagwe at Karagwe in Civil • Appeal No. 9 of 1970 before J. Mboneko, Esq,, B/N & Kaisho Primary Court Civil Case No. 1 of 1970) KALYABWOMIPLE RULANGA ....... - .... ............... . * ....... APPELLANT versus iEGILIMBNA RUKIZANGABO ... ................................. jiESPONDENT JUDGEMENT EL-KINDY, J; Kalyabwomire Rulanga appealed against the judgernent and decree of the District Court of Bukoba which held in favour of the respondent, Rwegilimbwa Rukizangabo. The dispute is over a head of cattle alleged to be worth Shs. 300/-. Both parties were present at the hearing of the appeal. % Having regard to the evidence on record, I can find no reason for the course the appellate court took. The issue was one of credibility of witnesses and the learned appellate magistrate gave no sound reason for reversing the trial courts unanimous decision. The appellant led evidence to show that the disputed head of cattle was bought by him for Shs. 300/-, and that it was handed over to the respondent for safe custody. The alleged, purchase was witnessed by one witness. The appellant also said that when a third part, in Civ. C. No; 4/70, wanted to take possession of the head of cattle, he gave evidence which decisevily led the court to hold that it was not the property of the third part. The appellant' admitted that the appellants evidence was decisive in that case, but he alleged that the disputed head of cattle was handed over to him after the appellant's father failed to pay Shs. 200/-. He said he had originally sold it to the late father of the appellant. However, there was no evidence to show that there was such a sale between the late father of the appellant and the respondent, or that it was the late father of the appel- lant who handed over custody of the said head of cattle to the respondent. Some witnesses gave evidence, but it was largely hearsay. The trial court ,found in favour of the appellant, and as I have said the appellate court reversed that judgement without showing why it acted as it did. On the basis of the evidence, and having regard to the fact that the trial court had the advantage of hearing the witnesses and weighing the evidence., it was entitled to hold as it did. In the circumtances, I allow this appeal. The trial court's judgement is restored with full costs. If there is any dispute as to the amount of costs to be pad, the District Court of Bukoba is directed to hear and determine such dispute. Delivered at Mwanza on the 29th day of June, 1973 in the absence of both parties. , - p Z.N. El-Ky 29th June 1973. JUDGE DLECTI0NS: Both parties should be notified the results of this appeal through their District Court- Bukoba as they were informed. Z.N. EKindy 29th June, 1973. , JUDG.