19960827 TZHC Mwanza

IN THE HIGH C0Ui1T )F Ti\.NZANIA AT M:WllNZA ---="------· PC CIVIL APPEAL NOo 65 OF 1995 (from the decision of Serengeti Distr:i.ct Court of Serengeti Civil Appeal No 0 21 of 1995 and Oriei~ MQjimoto Primary Court Civil Case Noo 30 of 1994) MARO MTURI MARO ooo o 0 0 0 0 0 0 0 0 oooooetio !""n•o o.-.o oeoooooeo o o o .{U)PEllilliT VERSUS ALEXANDER NYAKONGJ\. s/o MAGOCHA , o o e o " tt ct o o o o o o c o o o • o o ('I n o RESPONDENT JUDGMENT MUNYERA J,. The appellant was the plaintiff in Ngoreme PrimaTy Court,. He sued the respondent for recovery of 253 !1eacl of cattle arising out of cattle bailmento It was tha appellant's case that he has had cordial relationship with the respondent 0 In July 1974 he joined the army in Dar es Salaamo In December 1976 he \tent home on leave to find his father Maturi Maro very sick, he died in January 1977. It was during this time that he. entered into negotiations and finally an aGreement whereby he was to send money to t~e respondent and the latter would buy cattle for him. He also agre,,d with the respondent that the le.tter would keep the cattle he bought on a traditional cat.':le bailment basis. The appellant then went back to his ,jobe In April 'i977 he sent shsc 400 to the respondent, in June he sen-!:: s!1s 400, in A-t1gust shs 550, in October shs 550, in December 1977 shs 2000 1 in January 1978 shs 550, in March shs 550, total shs ( 400 + 4bO ·i- 550 + 550 + 2000 + 550 + 550) 5,000. According to him (appellant) the respondent bou5ht the cattke with that money. When he went home in June 1972 and dema__~ded to be shown the cattle the respondent had bought with that money shs 5000,. The respondent showed him eleven (11) head; two (2) heifers, eight (8) cows and one (1) ox, total ( 2 + 8 + ··;) -;1 head of cattlen .From that. time no more cattle were boughto In December 1979 he went home again, this time the respondent showeC::. him twe::1ty ei1:sht (28) head, nine (9) cows, six (6) heifers and thirteen (13) oxen, total ( 9 + 6 + 13) 28 head of cattle. After that h.s did not ro on leave till June 1992 when he went home. This time the respondent avoided to show him his cattle despite demandso In July 1991+ hE, (respor,dent) showed seventeen (17) head of cattle to the appellan:t' s yotmgcr brother, Juma Moturi 0 o O ct O O G Q o o/2. Q 2 .., (PW3) inade· up ·as; two (2) m~sai, f,::iur (4) · cows, six (6) heifers and = five (5) oxen, total (2 + 4.+ 6 + 5.) 17 head,, F'inally the appellant demanded the cattle should be haricled over to him, the ~espondent retorted, the appellant suec:, claim::'.ng · a total of 253 ~eq.(l . of cattle originating from the cattle he (::;e01:oric~ent) bout;ht with .·the money shs '5000 and their off springs t•)talling that number he claimed., In his defence th_e respondent, ?hile a.dmitting to have received. the money shs 5000 in all, he denied the money was for buying cattle, it was for building houses, the job he claimed he did sntisfactorily using his o'Wll ·.. money to comi_Jlete the houses a It was >;-:hen 210 demanded a· :ce'fund from the appellant that he reacted by filing this suit in order to defeat the respondent•'s claim., The trial court heard the evidence of both sides .. and cam·e to an unam:i.mous conclusion that tl,J.e appellant has proved his case and pronounced judgment ac.cordinglyt1 Dut out of' 253 head of cattle sued for, the court disallowed 112 for mortality ru1d the bailee expenses and awarded the appellant a total of 11+1 head of cattleo The respondent. felt aggrieved and appealed to the District Court which allowe~l the 1 appeal and dismissed the appeJ.1.antv s suit as:: unfounded~ ll_e appealed· to . · this court. In reading the records and.upon hearing the submissions.'of the appellant's· advocate, Mr Dilaro, and of the re.spondent personallyr I find there was no disoute over the m_oney the appellant had sent to the respondent, it was a common e;round the latter had received shso 5000 in instalments., The dispute centres 0:1 the purj)ose for whi?~ .the money was received, the appellant asserts it was for buying cattle for him while the respondent a:r:g~~s it was for building housese The appellant insisted the respondent had sho_wn him: the cattle he bought while :the respondent denied that fact 11 he says he never bought any cattle for the appellant, the money was for 1::uilding- houses., In reply to cross-examinations by the respondent the appellant had this to say:•• HK_azi kc:!.ti yan8u na wewe twnefanya kazi mara .t.atu karna ifuatavyo: (a) ~aka 1977 -- ?8 nimekv:cwnia fed.ha ~inuliac.nc 9 ombe (b) Mwaka 1990 baada ya ku::ina kule Nyamakabiti kumekuwa na :1G.tari ya kuvamiwa na majambazi ile nyumba tuliibomoa tukaij enge. hapa Kitarahota., W.3He ncliye u.likuwn msimamizi wa nyumba hiyo,, Fedha hizo wewe nilikuwa nakutumiaH 0 0 Cl ct. e e o/3 0 O .... I - ... r Now the appellant had admitted before the trial court and before the first appellate court that the.respondent built him two houses, onG at a place called Nyamakobiti. For security reason they demolished that house and erected• another one at 1:i~:aral10ta, but hu made no mention about the money used to build those ho11,ses., He simply said nFedha hizo wewe nilikuwa nakutumia11 Ile. did not say when he sent him that building money and how much. This fact being left unclarified, this court has no choice except to agree with the District Court and the respondent that the only money he (re~rondent) received was shs 5000. This amount alone could not have bought eleven (11) h~ad of cattle in 1978 and then leave enough bala.'1.ce to build two houses in 1979 -- 1983, it would have been a miracle. The appellant stated the respondent showed him eleven (11) head of cattle in June 1978 0 IIe did not state the colours of the cattle r,nd the marks he put on them 0 This was necessary to identify his cattle from others and for identity in case of thefto It is absurd to hear him saying the respondent avoided to show him the cattle at the same time he claimed he had shown him eleven in 1978 1 he nv)ver showed him any cattle 0 Ee brout:;ht no reliable evidence to establish that fact, he an~ his younger brother Juma (PW2) cannot be believed. Why were they content being shqwn the cattle in secret, without anybody else seeing'? I agree with the learned District Magiatrate that the 5,000 the respondentrr"eceived was for building the house and not for any 0the:'.' purpose.so I dismiss the appeal with costs. ·. :·//AT ·MUSOMli. .· \?;~f_ F, 1 .. MUNYER.A '"' ! . 27/8/96.t. ; \ t,y, ' JUlX:iE :, '.'. \ ,:ii\. );;~ . . ..·. ·:·:?:·.... ·:· . ;} .. I here?:!:'-f/3r!t}£f,hat this is a true copy of the Original ····< __ '--,:,?/'