19760805 TZHC Arusha

IN TIlE HIGU COURT OF TLNANIA I. .La.J_ m . DT I £LJJ! (PC) CIVIL ALPEAL NO. 16 OF 1973 (FROI: THE DECISION a: TH DISTRICT COURT Oi LRUS1-11 AT ARUSIA III CIVIL PP.EAL M. 54 OF 1973) LD3OIYESLiUI'TI .....,............,......... APPELLAITT versus KISIOICI SL.RUNI •...•• ......... RESPONDENT TTTT,!T tJ UI) .T.1Ljl,j. JOlLTHJd' J. In the Pri iara Court KIS1OiI SARUIII suod his half brother, LrBOIYE SL.RTJPI for four head of cattle • The trial nagistra'bc in .ainorety d.ocision foimd for the 1D1ainti:. The two assessors .sittin with hia, on the other hand, gave judgnent •f or. the defendant and in effect that bocaao the judgecnt of the court. KISIOKI succosefuiLly appealed to the District Court, hence the present asocal 'oing browjht by rOTYE. SIRUilI, the father of the arts is dead but the date of his death is not indicated. They bolonj to the Meru tribe - IOIYE is older than KISIO. . According to the latter in his ovidenc., sovc-ral yrrs ago ho exchanged his sheep for a calf fron one OiOLE, of the Lnsa± trio. There was then a cattle opidenic and he did not take the calf just then; ho lLft it with TO'(0INE. It was later stolen by the son 6f.OKOIHE who has since died. It was, howovor, agrOOd that TOKOINE should pay a custonar.. fine nouxiting to .foi.r head 'of cattle. It would appear tiI.i: all those nogotiatioiis had been concluded by SARIThI on his behalf. FOr reasons which .a"e

iiot apparcnt, however 9 these ani:aie wore not paid at oncO • So. &ti:ie later L'OIiE ia the ?rinary court of Kibong'to, LIosii District (as 'it. was then) sued. TOKOINE for the four head of cattic. Their father than effectively intorvonod sai'n that the nattor was not the concern of P!OIYE . iOIY would. not stop there and at a later date ho again sued TTiiTE before ITbuwi Prmnary Court for tho s.c aneals.. Tnair jahee again intervened. LOIYi, for the third ti.c, after death 01 their lather, again sued TIKOIITE f Or the anieals, this tine in the Prmnary Court of Kin.g'.ori which, like that of ivibugmii, is in the district of Aru-heru. KISIOKI intervened ineffectually and the cattle were haridc-d. over to J3CIYE. Rathor surprisingly, this account was fully st.pported. by IILTILYA, IIBOIYE's own nether. In particular, she said KISIOKI sold a sheep. to buy a calf which he kept with TIKOINE. To a question by hCr son she however adnittd that IOIYE- had once driven his cattle to the cattle boma of TIOINE whore they stayed over-night before bhoir father drove then back. She added that no aninal was loft 'behind. -OROBI tne son of TILOliJj was 'che last witness for the plamnG if f' S cae. lb.. •... • . . •.... • . -2 - He said his ft}€r ri1. BIJiLTLI had flec liatcd- to exchange a calf for . shoop and, in consec1a0ncc, ho hI sri thoi accopanioL by KISIOKI bri-,, V~ -Lng 3hoop to their

houoe. The calf ha was ivcn in exchange wa howi. .o theia. 11BOIYE ii c1 1TtoI coi for Gil: C. 1f but ill O[I i ij1 a ivo jij. :. LB.CIYE thdn imsiiccesfu1i suod his father before the Kiboni oto Frisary Court • no later restarted the crise at 1fbugiuii. It. was at ihat sage th b ur calf was stolen by the brother c]f thb eji;ness He does not say what the outc one of the case was, but he doss on to say that, after the death of their father J;hQIYE claiicd 4 head of cattle frori TIKOINE. Those, ho said, should. hovvoyer.havc gone to KISIOKI. So auch for iho plaintiff's case • The defendant in his tostiriony said in 1955 ho riovod his whole hQrd to the cattle bosia of TIKOII133. On. the next day, however, his father took then back hut ho left cue behind in error and ho, the dad ondant, asked TIkOIlL to keep it for ilia. He kept it until 1960 when it was stolen. That rcsuted in the arrest o f TIKOS 171 -j as Iic. occu d bJore L10 Pri r' Couxt of Kibong'oto. That court lacked jurisdictien and the defendant on its advice sued TIKOINE is the PrL:lary Court of iThgirni whore TIhOIih airs ed be pay kin four head of cattle within five days. But TIKOIIiE soon on.igratsd, prosuaably to dn at bi c] 1 • n aid wi rotur uas,il the no1ith of March, 1973 when he sued hiT am, this tine in the Prioiary Court of inf' in. Tn curb °aly gLL Tt O1iTE VO hrn thd aninols notwithotandin protests by KISIOK

I as True account was supported by 'UhC evidence of one NPJII3EZE. Ho said t defendant hod brought a herd. of cattle ... to bo. Ba of Ti CI '? only t as U wn been on tue next dey by dTh1I wTiQ, noaover loss one oeninci, nanco trio subsocjuo•nt c±ain by tucasefeneLant. One cjYi riLteU also tostuiuod for she dci oncLant. Like T±:Oi.L'ik tie is 0± ti'_e hLasaIL tribe and at the relevant tines h. sos representing the of TIKOINE on the council of the Native uthoniiy• Ho roriasbored the defendant accusing TIKOlITE hod .rc iho Kibong' oto Pri: :nry Court and the case then being tronsned to TKouguii. Before the foruer., he said, ho hoard dIJUNI say thi; ho had loft one aniasal bohind., tai is, ho supported the clam of his son. Jt. Mbugun.i TIKOITTE was asked to pay five, and not four, aninals, this within five nine. nt a lacer date ho Gosh up the caeQ of TIKOINL tie. TThuuni Prmnor Court, before which ho succcsfally nguJ 'u s fI\CTNE n , nl.. t born tiis brief, it was u&au: in ia p y1auiit of .attic drori hun. It was not tue, therefore, 1e said, tno trio failure of T1KO1NE to pay as had boon ordered was not dho to his subs euently noving out of that area as ti.to defendant hd clairiied. The case is ens of consiasrahiLe difficulty and it is not surpr,siug the lower courts have arnivd at different •conclusions. TI.KOINE, had ha boon called would have been veiy helpful in the nation.

Uriforiunatoly, however, when the proceedings wore brought he was too old to appear and the partiss did. not book to call hiii. The trial siagistrate i n his diesenting decision scone to have hold it against the defendant largely because, contrary' to his clini, there had not been a case filed in thc Prinary Court of Monifimi to which the defendant and Tikoune were the parties. -3-. In the record there is a lel;tcr by the gistrate of the I'ffbugirni Prinary Coi)rlb in which hc certiiios that the register of that court .doos"not show any case having been filed between.l960 and 1970 in vihic.h the defendant and TIKOINE were the. contestants. No such proceedings nay have been filed there but, as conceded by the plaintiff and his witness OROBI i1'1't1ieir evidence, there wts o c:iisputc at Mbuguni between these two people which nay have been settled adi:iinistratively. It nay be noted that the :iaj'ority of our Priaary Courts especially those in the .ru±al areas are juxtaposed with the offices of d.ninistrdtion. large section of the public 9 thoref ore, often .aaks no distinction between the judicial and athainistative or 'executive organs in those areas • In the present case there was undoubtedly a dispute lodged at Mbuguni involving the dcf'endant and Tikoine which may have been dealt with by the Divisional or Jard offices. Lccord.ingly the letter that no such dispute had been

filed in the prinary court was largely irrelevant to the real iosuo before the trial court, tnie, as I have said, because there was agrco.aent that such dispute had been reported at Mbuguni. The nain reason for the first appellate court allowing the appeal before it w.s, as it found, an aparont lack of evidence that the defendant iiad ben given the cattle by order of any cour. I tninlc tiiis vae a .ciisdirection. Both the plaintiff and the defendant in their evidence agreed that there had been proceedings before the Kingori Primary Court in which it was ordered that those ani::ials should be handed over to the defendant. In thso pr coedi.ngs the plaintiff had unsuOcoesfully objected to that course. Ofcourse that court does not appear to hove fullo; invosti toJ into the nerits of the le.intif'f's deja vis-a-vis thooc of the do±'endant, but it was not true that the aniaalo had. not been given to the defendant on any order of a court. No reason has been f' rthco.. king for the lon' delay there wa.s 'in getting TIK0IE to pay up • The plaintiff has no idea •of 'dates and he and: 1rs witnesses makci no reference whatever to the dates of the various stages in the case. It however. seems to . date bac:t e a groat number of years ago. The• defendant h.s ben ..oro helpful in this ragard. Now, if'. 'aS he says, his one noad of cattle bit win TIKOENE was stolen Lhe in 1960, there is ne

apoarcnt reason whyshouILd hav taken more than 10 years to get TIKOI to pay up • TIKOINE may hav moved out of that area thcrby causing; seas delay as he says, but 'th.t happened after the hTbugirni .aeeting. As to this indications are howeve', it was hold after 1970. The delay as regards the preceding period is not' covered by that explantiorr. But this. canliot be blamed on the dofenddnt alone; ecual1y, the plaintiff, and tioir father do no appear to have zealously followed up -their claim • The defendaiat, notwithstan- ding sucn snortcoming, appears all along o have been actively involved in the move to get TIKOINE to pay the animals, albeit there nay have been a dispute betwben hLiself and his father as to which of ihem was entitled to payinenG. I have in mind the appearances at Kibong!oto, Mbuguni and King'ori. At all those meetings he apseared to 'be the claimant against TIKOINE and SARUNI was little more than an interested i'ntervoner or objector. - I.............../4 i . IMM - 4 - I get the iLipression that SL.RlTflI would not himself take any appreciable initiative to get those animals • I would accordingly agree with the trial assessors that the apparent laxity or oven indifference on the part of SiRUNI considerably vitiated such claim as ho night himself ultimately have made against the defendant. The position of ho plaintiff vie-a-vie that of the defendant is not any

better than that of their father. He was an adult when any cause of action accrued against TIKOINE. At no stage, however, has ho personally iaade any claim againsG Ti.t'OiiTE for those animals; the most he appears to have acne, if at all, is to accompany his fatmor to confront either Tl.OiNE or the defendant. It has however been explained, that he could nt have made any claim as long as his father lived. It is doubtful if that is a customary rule ong the Weru. Be that as it may, the assessors do not seem to have been so impressed. One or two considerations seen to detract somewhat from the case for the dc±ondant. There is, as already pointed out, some conflict between his evidence an1. that of his witness }YA firstly, as regards the nuL'lbor of cattle the Ivlbuguni meeting awarded hiu and secondly, respecting the reason for the delay in following up that a\lard. There is then the evidence of his own mother supporting the plaintiff's case. Ordinarily, it takes a lot of courage for a nothr to testify falsely against her own son' s interests, but from the defendant's statement before she gave her evidoncc -tnd from the Jroceeaings as a wnole I got the impression that relations between the defendant and his relatives, including his parents, had been estranged for a long timo. Her evidence should therefore be seen in this light. A I indicated earlier this ic not one of those

cases where one can decide completely with a clear mind. It depends entirely on credibility, in respect of which the trial court was the best judge, it having seen and heard the witnesses. In the event, it found for the defendant, if only by a majority decision. Would the two courts ab:ve it be entitled to upset that decision? I think not, notwithstanding that the case- for tho defendant is to some extemt'self-ocntradictory. The case was to be decided en the balance of probabilities, and the plaintiff in order to succeed had not merely to strike a balance; ho had to g'd further, if just, to upset that balance in his favou. n . hc circumstances of the case, I cannot say that the asossors were wrong when they found he had not discharged the burden that lay on him to establish. In the result the appeal is allowed with costs. The judgment of the Disturict Court is set aside and in its place there is restored that of the trial court. (P. K. JOILTHJd-T) JTJDG. Judgment dmli:erod in open court at Arusha this 5th day of August, 1976. 0 .( P • K. JONATIIL.N) PMJ/MTPI.i. JUDG-E on -s..