19771227 TZHC Mbeya

m -r !!.H COURT OF A1'TZA1'!A AT NBEYA. (Pa) CIVIL APPEAL NO:1/77 (ORIGINATING FROM MWAYA •PR.C. CIVIL CASE NO; 38/77 OF ISTRI'CT COURT KYELA CIVIL APPEAL NO:38/77) LULl s/o M/AIBMhiBE: : : : : : : : APPELLANT PETER M1AITU1O: ::::: :: : : :RESPONDENT. J U' D G B M B N T • BEFORE:- J.M. NCKANJA - DISTRICT REGISTRAR ( EXTENDED JURISDI- CTION) This is a second appeal from the decision of the Primary Court of Kyela District at 1'Iwaya. The ; trial Court found for the plaintiff, now the respondent, a decision which was upheld by the District Court. The plaintiff's case at the court of first instance was that sometime in 1974 he was desirous of buying a head of cattle at some place called Ngana. He approached one Angundile Nwaipopo (PW.2) who willingly offered help in the search for the wanted animal0 In the course of their joint. endeavours they discovered that one Luka Mwaibambe, the original defendant, and now the appellant, had some head of cattle for sale. When he was appro- ached, soit was alleged, the defendant told them that he had sold the beast he had to some butchers; he however promised to get one head of •cattle from his friend or relativ who was then in Malawi. The 6efendant then suggested that the plaintiff leave the money behind. Due to the faith and trust which ngundile Mwaipopo had in the defendant, a person he described as 11 huyu ni mtu mzuri tunaweza kumwachia

fedha," the plaintiff left the money, a sum of Shs.6001=, to the defendant TIree months later the plaintiff went back to the defendant to inquire whether the head of cattle had beet obtained. .ilt that time the defendant is alleged to have said that he had already paid. the price in Malawian currendy, only that the beast was 'at ,je1enje - presumably a vill.ge in Malawi, and that the plaintift was to wait a bit more.. again, sometime n 1975 the plaintiff appro- ached the defendant to ascertain whether the beast had already been secured. It was at that time that the defendant ' said that he had spent all tc money; he howe - er proviised to get;the beast from Malawj. Tho plaintiff appears not to have lost hope, so that in 1976 he wet-.t back to the defendant to get some word about the animal latter had promised to deliver. The head of cattle was nev( delivered, instead the defendant demanded a sum of Shs.20/, being money which was to be paid as a fee to.a verterinary fficer for a'permit to allow them.. -2- Because even by that time the cattle was not delivered the plaintiff lost hope and he finally sued the defendant for the refund of the money. The defendnt flatly.denied the claim,, contending that he never was given any money by the plaintiff and that Angundile Mwaipopa was only bent on defrauding.him. It was on this; evidence, however, that the trial court unanimously

entered judgement for the plaintiff. On first appeal the District Court upheld that decision. The defendant now appeals to this Court In his petition of appeal the defendant/appellant has submitted five grounds upon which he seeks this court to impugn •the decision he has appealed against. By and large, however, all these grounds were raised before the District Court and, in quite a refreshing judgement each of them was dealt with according to its merits. Like in the District Court he was here again complained that one of the assessors is related to the plaintiff/respondent. He names the. assessor he complains against as1. one Petro bin Nwaitulo. Clearly the record speaks agaiist the appellant. The case was heard and finalized in one day. There was no change of assessors,- and those who sat with the. learned trial magistrate are recorded as Asmwisye Mwakasanga and Ruyangisye Mwakalukwa.. As the learned District Magistrate rightly poiited out, if the appellant was unhappy with any of the assessors he surely was entitled to complain about it during the trial. May be it is patently wrong to retain a few assessors for a long time; however, this ianot a problem which has been created by the courts. For time and again the relevant authorities have been called upon to select a minimum of thirty worthy citizens to help the primary courts in the administration of justice The complaint

raised by the appellant that only three assessors have sat year in year out is strong evidence that assessors are not selected yearly. Since the courts have no participatory right in selecting assessors, and since a primary court is not fully constitued without a magis'trate and a minimum of two assessors the trial court was still bound to sit with two assessors. Even though it is unfortunate that the two assessor are. veterans, the complaint uncompassed in the first ground of appeal sufficiently absolves the learned trial magi'trate to the extent that he did not select friends to sit with hi. whe.n trying the suit which is the subject of this appeal. For slightly different reasons from those given in the first, applate judgement I would also reject the first ground of appeal. w 3- The second ground of appeal challenges the jurisdiction of the trial court. The reasons which were advanced by the learned District Magistrate are legally sound and I therefore find myself with nothing useful to add thereto, apart from reaffirming that there is one primary court in any given district. 2 his is clearly spelled out by 5.4 (1) of the Magistrate's courts Act,Cap. 537, which provides: 9.4 (1) Phere Is hereby established in every district a primary court which shall, subject to the provisions 7 any law for the time being in force, exercise jurisdiction within the district in which it is

extabli- shed. U It follows, as day follows night, that any station of a primary court in any district, has equal and concurrent jurisdiction with other primary court stations in any such district. The filing of a matter in any one of the said primary court stations is purely for the sake of convenience to the parties and their witnesses. So that even if the alleged transaction was made at Ikolo the Primary court at Mwaya, being in Kyela District as much as Ikolo is, had full jurisdiction to hear and determine the case appealed against. As to the fourth ground of appeal, which I think is devoid of any merit, I would only say that apart from a matrimonial proceeding, there is no other litigation which requires to be referred to a concilliatory Board precedent to its being determined. There was therefore no reason why the respondent had to refer the matter to a concilliatory board prior to filing the suit. So long as the suit was not time- barred, its being filed in court the way it was done was quite proper. In his fifth ground of appeal the appellant challenges the credibility of the witness who was called by the plaintiff. his is a second appeal and as suclt: -this court does not have the equal advantage of seeing a witness in the witness box. The best judge of the credibility of witnesies is the trial court. The court of first instance held that t1.at man was a

credible witness. There being nothtg on record which wruld shown that the trial court misdirected iself ° on the evidence, this court will be unable to interfere with such a finding of fact. - 4 - Upca my own evaluation of the evidence I respectifully concur in the reasonswhich were given by the two cdirts below. There was in fact no new ground which was raised in this appeal upon which the unanimous decision of the trial court could be faulted.. The evidence of PJ.2 br.ings the plaintiff's case above a mero preponorance of evidence. On these grounds the appeal is doomed to fail and it is hereby dismissed with costs in this court. and in the two courts below. J N NACKANJA. • : DISTRICT REGISTAR. •• 14 B E Y A I 274,12/77. /RUTH. it