19800530 TZHC Mbeya

H IN 9HR, HIGH COURT OF TANZI AT MBEYA (pa) CIVIL APPEAL NC. 42 OP 1979 (Prom the decision of the D.striot Càurt of Rungwe at 'Ailtuyu in Civil .PPOa1 No. 65 of 1975) BE]ORE: J. A. MWAKIHABA,Eq,,D//tAGISTRATE. ui1tJNJOBELiiIE MWAIPASI •....... • . . . . . ., ,. • . . .. . . , . . .. APPELLJ\NT versus AMBO NISYE MWAIPOPO . . . . . . . . . • . . . . . . . . . . . . . . , . . . . . . . RJ.ZPONDEN' JUDGMENT Before HJ. Mkatte, C.R.M. - Thcended jurisdiction. In this case the afi3eliant Munjobelege bin Mwaipasi sued the responde:.t .Amboiiisye bin Mwaipopo for a claim of 13 heads of cattle plus sha. ioc/=. Originally the matter was before Masoko Primary court as P.C. Civ. case No. 203/75. The appellant was succeaaftl fri the Primary Court. The appllnt1 success aggrieved the respondent who lodged anpeaI 6o the Dit±'it Court. The District Court gave 3udgmont in favour of the present appellant (plaintiff) but reduced the qual2tum claimed to 3 cows plus zhs. ioo/. Hence this appeal. The appEllant was not satisfied with the quantum awa±ded.. Brlefly the facts are as follows. The appellant, Mwaipasi, had married one Mama d/o Su1erida. Sometime in 1967 the said divorced her hus3cnd, hé'ap'e]i]an 'ith r6urid desertion. The appellant as per recox ha U..b53 Zambia. As a result of the divoe - the a Iiantsfather:in laW e KumnWba 's/o akalinga re±üned the bride price wIh théappellant hd ptd.. 1ieapellnt to.:securé Haina. ...siá, .coW and'.sha. 100/. the. bide prid' Was refUnddr .è áppellaiit WaS still in Zia the wife wagian 3 cows and" thpresent resiondent,' i'pop' gô'.t 3 cows.aid shs.. lOO/= on beha]f ofthe: ap.pelIant'wh'o is' his. bre.ther, . ........ -' .,. '.. -2- The crux of the story starts from here. The appellant, Mwaipasi, alleged and called witnesses to prove that out of the three COWS two produced 5 calves each so to say 10. calves in total. The appellant therefore claimed and still claims the three original cows which were refunded to the respondent plus the ten balves boin out of the two cows together therefore 13 heads and not 19 as recorded on the original file. I say so because even if the claim included the three other heads refunded to Haina the total would still be 16 and not 19. I think there was some duplication in the counting. The respondent admitted receipt of three cows plus shs. lOO/=. He added, however, that he paid the same three cows immediately as bride price for his own wife. Meki s/o Mwansasu who was DW.3 is the father in law of the respondent confirmed that he received 4 cows from the respondent. One Paliki s/o Mwasikili who Vas DW.2 confimed that the respondent paid the three cows whiáh the respondent received as bride price refund to Meki, DW.3. Pallid, is a neighbour of the respondent The appellant through his son Sue s/a Mwakelindile who was PW.2 deposed that one of the cows which the respondent received produced 5 m1e calves and another 5 female calvs. ilimolo MwakatumbUla who was P4 said one of the cows produced 5 female calves and the other 4 male calvesb Gilimolo went on to swear that one of the cow is still at the respondent's home and another was given away as bride price for his (respondent's) wife. 1' The trial court believed the evidence of the appellant (plainti' cuni suis and found it as a fact that two cows out of the three refunded to the respondent(defendan -t) by the father in law produced five calves each so to say ten calves in total. They believed Sile, .P.2, who testified that he was grazing the cows. The trial court also argued that Mwakatumbula, IW.4, who was a neighbour of the respondent could not be without the knowledge of the events. "/3 This matter is before me on second appeal. I an therefore not in a position to review questions of fact. The first appellate court, the district court 9 had the chance to do so and I think in my consi- dered opinion carefully reviewed the facts and earn to a r1it conclusion. The district court found that Silo, P7.2, being the son of the appellant and Haina being the ox-wife of the appellant were biased against the rosnondent. He found that the respondents witnesses were independent and credible. In addition to the districts courtts finding it is also important to note that Sue, PV.2, who strongly swore that he was grazing the cattle never told the court as to how the three heads of cattle and the ten calves were disposed of, lot alone as to whore they were 9 if at all there are any. As the trial court argued, Maka3a, PtVO4 could not be without iowledge oCthe events. So, 1ft all there were ten issues from the cows, P1.4 and especially IW.2 would have been in a position to tell as to how the pattle were disposed of and if not disposed of at the most they could tell us where the heats, of cattle are. PV.2 and P7.4 could not say anything about it. I have nodoubt whatsoever that the disposal of such an alleged number of heads of family (bride-price) cattle would not have passed without notice and attention of especially She, P11.2 who is the son of the appellant and who in this case was grazing the cattle. On the.above reasons I do accept the 1arnod district magistrate's finding that the three heads of cattle which were remded to the respondent did r' produce any issue while, in the hands of the reaponaen (defendant). There is, in the circumstances of this case, every reason to believe the respondent and his witnesses, as was accepted by the district court q that the respondent disposed of the three heads of cattle iimediately af he had received them. He paid them as brie price for his own marr±r ../4 — — L€ - IJ*1 1nother ques±ion which could he raised in one of time iiL. Tao respondent original defcnont received the cattle from the • in—lhwsVoni8/]J67. The appellant, original plaintiff piled the suit against the respondent in 1974, almost seven years later. The appellant during all the period of sevcn yc - rs was in Zambia. Heretuthd to Taznia on 29/10/74 9 ad filed the suit on16/12/74 •In the athve gien circumstances the appellant, I find, was under d1ae? -. to file the suit within the prescribed time limit as laid down in G.N. 311164 becauê, first he was not award of the accrual of the cause of action and - secondly he was out of this country. In the a1teriative, if I may beheld wrong inmy above cond1usio the appellant, I think is entitled to the return of the three head o -cattle Plus shs. 100/= which the Srespondent admits to have had received as refund of bride pri.ce, from thern in- laws on behalf,of the appellant. -e respoidVen.t from- the rer3stai'.t oth i4t ited. •hd was redy to .pay:thè l.im tothe:bun fha..thiee1aedsi.of V a4tl e - an d shs4a0o1=.- Theditrict co1rVtgave1adèàii6 tthe sai ef-feet. :I;doipho.ld:Vthe:decjsibno ,the..distrie -t tourt thhonI- V three cows and sha, iao/= shcu]Id be7, handed bick to 'the appellant. • - •'he- apelis *: - -•--: (sá) •- V V H. J.MKATTE ' • - 0. V • •.• • V VV Judgraent to be cyclostyled for delivery at Thingwe district, • cVoürt V V •:L ... Li V• -. - ' H J ICA T 0': • V 36//i980,- - C. R. M.- -CTJY TLED. JtJRISDItTION •V V: V - * - -. V V • V• V :V - •V V - : :- • • . •• I certify tht *this is a true hd V V - •'• V V • c-or- e Vt r the original Judgment. 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