19700611 TZHC Mwanza

- - IN TH HIGH COURT OF TANZANIA AT MWANZA. (pc) CIVIL APPEAL NO. 51 OF 1970 (From the decisior. of the District Court of Kaharna District at Rahama in Civil A; peal No, 30 of 1969 Before F.N. Buberwa Esq., District Magistrat and P.C. Civil Case No, 4 of 1 969). MAGANGA MAZIKU ................................ . . . ., . . . . . APPELLANT Versus MANIJALISALEHE . . , . , . ......... ................... . . . . RESPONDENT. JUDGIENT. MNZAVAS, Ag. J. The appellaht successfully sued the respondent in the primary court for the retu'n of 40 heads of cattle which were alleged to have been given to the respondent's late father by the appellant's father who is also deceased. The respondnt appealled to the district court which reversed the primary court' decision. The appellant now has appealled to this court. It is not t all in dispute that appellant's father and that of the respondent were parternal brothers. Equally it is not disputed that these two brohers wre in good terms up to the time of their departure. The appellaht's case as stated in the lower court is that about 20 years ago his dceased father gave to the father of the respondent 15 heads of cattle on loan to enable him to get enough milk for his children. He went on and told the court that he himself witnessed the handing over o the beasts to respondet's deceased father. He also alleged in th lower court that the respondent and his younger brother one Majalia Salehe accompanied respondent's father when the beasts were handed to the later. Further more the appellant mentioned three people who, according to his testimony, witnessed the transaction. The appe1lait also alleged in his testimony that in the course of years the 15 head of cattle multiplied to 40. Milimo /o i ( p.w. 2) one of the three people mentioned above testified in the lower court that he happened to be present when respondent's father received 15 head of cattle from appellant's father. According to his testimony the cattle comprised of 12 cows and 3 bulls. Another witness, M.koye Mabula (P..v. 3) gave similar evidence to that of P,W. 2. Nzembis/o Nyule (F.4. 4) a headman of the village gave evidence to the ef'ect that he did not know about the alleged transaction but on cross-examiiation he by implication agrees that respondent's father did have cat1e in his kraal which did not belong to him. , /2 , -2- Nshumba Manga (p,w. 5) testified that after the death of respondent's father neighbours came to know that some of his cattle belonged to appel'ant's deceased father. The respondent who did not appear during the hearing of this appeal did not with any amount of force denie the allegation that his late father did take 15 head of cattle from appellants father. He only gave an evasie denial of the allegation. The dietrit court reversed, the finding of the primary court on the ground that the witnesses brought by the appellant gave contradictory evidnce. It is true that some witnesses, e.g. P.W. 5 and P.vJ. 6, oontradiotd each other but it must be remembered that the transaction is alleged to have taken place 20 years ago. This period cannot be said to De recent. Any inconsistence of evidence by simple peasant about what they can remember of an event which took place 20 years ago is to be expected. - From the e&idence it is amply clear that 15 head of cattle where given to responden's father by appellant's father. This is so from the testimony if two eye-witness P.W, 2 and P.W. 3. There was also evidence that 40 hads of cattle (inclusive of the original 15) bore identification marks similar to the fifteen heads of cattle given to the respondent's late father. The primari court magistrate as well as the two assessors who sat with him accepted the evidence given in support of appellant's claim and in my view their finding is fully supported by the evidence. The district magistrate's order was clearly unjustified. Although an appellate tribunal may review questions of fact in order to see whether the trial court's decision should stand, such power must be used with cautio • The District court judgment is set aside and the primary court dcision is restored. The appe nt is to get his costs. MWANZA, inzayva 11 . 6 .7 0 . AG. JUDGE. S