19790420 TZHC Mbeya

(4.Q. IN THE NIGH COURT OP TANZANIA AT MBEYA (pc) CIVIL APPEAL NO.19 OF 1978 (Prom the decision of the District Court of Rungwe at Pukuyu in Civil Appeal No.62 of 1978 and Rungwe Primary Court Civil Case No.6 of 197 8 ) Before E.H. Ndunguru Esq, District Magistrate NA STOW NWANDALIM/i , ... . , , ... APPELLANT (Original Defendent) versus.g JOBAGA IMAJYLHNYqA .,. •,. ,. ,.. . RESPONDE1'JT 'Original Plaintiff) J U D G M B MWAKIBETE, J.,, - This is a 2nd appeal by Maston Mwandalima, He lost in Tukuyu Urban Court and lost again on appeal to the Rungwe District Court - hence this appeal. The respondent - Jobaga 1Iwammenywa - was the original plaintiff. He had sued the appellant for the return of a cow, and its offsprings - 3 in alL- which he allegedly had kept with the appellant in 1975. Appellant's case was that he hid bought the cow from the respondent at shs.300/= in 1972, He admitted that the said cow hac. since produced twice. Each one had called two itnesses but as rightly pointed out by the lower courts the evidence adduced by the parties was not decisive. But on critical analysis of the facts including the demeanour of the parties - the Primary Magis -arate with his two assessors came to the conclusion that the cow could not have been for sale but one entruntp to tho aj;pe Lart 'for safe- ko.irg—as contended by the respondent - a Mr. Mwammenywa. This was the view of the District Court as well. •1 I ) -.2- After a careful study of the record and the grounds of appeal including the submissions of the appellant in elaboration thereof I find myself unable to differ from the conclusion arrived at by the lower courts. Admittedly both the appellant and his witness Jackson Mwakasege did not even see the alleged cow when the purported sale took place and as properly observed by the District Court the evidence of appellant's child (Dw.3) is 'too short and vague to disclose what part he played in the matter,' The absence of the animal when the shs.30011= passed, in my view, tend to give credence to the assertion by the respondent and his witnesses that the money was not intended for tho cow in dispute L as part 'pa;. ::.:t or a cow to be found. Again, when respondent sent the cow to appellant's home it is unlikely appellant wouldhave accopted it in the absence of his principal witness the said Jackson Nwakasege. I am not persuaded a complete sale of an animal like a cow as in this case would have been so shabbily transacted Accordingly I would dismiss the appeal with costs. Delivered in court at Mbeya this 20th day of April. ) 1979, M. J. MWIiKIBETE JUDGE,