20071031 TZHC Mwanza 2

L.JEJaA.Rf HIGH COURT or TANZANIA . MWANZA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA I"' THEDISTRICT ATMWANZA REGISTRY {PC) CIVIL APL. NO. 17 OF 2007 ( From the decision of the District Court of Serengeti District at Mugumu in Civil Appeal No. 32 of 2005. Original Mugumu Urban Primary Court Civil Case No. 69 of 2004. Befure: G.V. Dudu, Esq. RM) SARA NYABUCHIGIRA ............ ~ ........... APPELLANT i I I VERSUS/ I ' MOKOHI MWITA .....................:.......... RESPONDENT I l ' I i ··3uoGME~T MACKANJA, J. The appellant Sara Nyabuchi ira brought a suit before the Mugumu Urban Primary Court in which she claimed two head of cattle from the responde t Makohi Mwita. According to the record of procee ings of the Primary Court the suit arises from non contestel claim by the plaintiff that she had entrusted two head of c ttle to the defendant. 1 I i I When the claim was read out at the trial court the defendant respondent as foll'ows: - "Kwa kweli aliweka kwangu ng'ombe wawili kama anavyodai, japokuwa mmoja alikamatwa akiwa kwangu, alikamatwa na Mwenyekiti wa Kitongoji na watu wa jadi". Thi~ statement was taken by the trial court as an admission of liability. A'$ a result the trial court found for the plaintiff ~ '( and ordered that she was entitled to th~ two beasts she had entrusted to the defendant. The defendant I was aggrieved. . i So he appealed before the Mugumu District Court following the ground that the statement wh1 h the defendant made in response to the claim in court did ot amount to admission of liability. The trial court went on to hold as follows:- "After the appellant h d stated what took place to the entru ted cows to him that the said leaders ent to him and attached one head of c ttle then it was 2 the duty of the court to proceed with · I the enquiry of the reasons for the attachment so that it could be proper to t ··; find out whether appellant be liable in l paying back the said cattle to the village leaders. In deed there were triable issue and therefore it could not be taken that the appellant admitted the claim 11 • By the reason of the foregoing observations the appeal was allowed with directions that the plea which was wrongly ' entered be set aside and the case d:o proceed on merit. I I am at pains to understand wrat the learned appellate·-. . I Resident Magistrate meant by say\ng that the defendant's admission, or plea as he calls it, wa~ wrongly taken. On the contrary what the defendant state was not an admission with indeed the plaintiff entrusted him with two .head of cattle, a ·matter which raises no con roversy at all. If as the defendant would want the world t believe, some people seized one head of cattle from him, t was for the defendant ·to take legal action to recover the animals. And if no head 3 , ., of cattle was ?eized from him why should it be that of the 'l . defendant himself. . ,/ :V1 ···./ I -Be that as it may have been, the respondent before the . .y~. l appellate district Court was aggrieved, hence this. appeal. . : : What transpired. before this Court, for ease of reference is reproduced below:- · "Appellant:- . , (After grounds of aRpeal have been .read out- to him). It 1s true. I gave '' respondent two bulls vyhich were for ;. . pulling. a plough. No tJull was seized from him. That is all. Respondent: - This young man e trusted .a cow - and a calf. He ·is a son of my brother- in-law. · I am married to. appellant's·. aunt. He·. brought the c w ·and calf so that his wife· could· milk er at -my home because he does not hav acowshed. 4 . . ... . ... ·, . . · - i. . . . . . . . ·• ...._·... : ·:·-:- ,~ . . . . The appellant took a heifer and sold it. The cow calved again. Village · authorities seized a bull which had just been weaned because he did not contribute to development activities. There remained the cow. He took the cow and yet another calf and took them to his father-in-law as part of bride wealth for his wife. Appellant:- What the appellant :states is untrue ' because I could not ~e required to ; contribute to development activities while I live with my parhnts and five of my elder brothers. Wh ( he said now is totally different from what he said before the trial prima court. I have never heard that villag authorities can seize cattle without au hority from the court. We have a co ·shed so I could not entrust him with a cow; I gave him 5 two bulls because they were destructive". . .... _- r 1 1 . l agree entirely with the appellant that what the respondent stated before the High Court was untrue because if there was any seize of ~attle as the way of contributing to development efforts in the village such cattle had to belong to the respondent who lives in that village. Upon foregoing reasons I am satisfied with the statement which was freely made by the respondent before the trial primary court was a true admission of ~iability. . Upon . the reasons stated. herein;above, · the appeal is allowed. Conseq~ently the decision of the appellate district court with all orders made therein is sJt aside. The decision of the trial. primary court is upheld. T~e appellant shall have . the costs of this appeal. Sgd: losephat M. Ma kanja JUDGE At Mwanza. 19th October, 2007. 6 •• ,r ~ : .. ·' :.:...-. '• - Date :. 31/10/2007 ·· . : Coram··•~ : F.W. Mgaya - DR . · . ·.· Applicant ~ Absent .· ·.· .. Respondent~ Absent. . · •· . . · · B/C · : ·Makole/Bosco .. . Court:-· Judgment, . . delivered . · today on·· the _absence of· both ..· . . . · parties. · ·· .. S9c{: :f. vV. :Jvt.gaya . . . 1)'1{. . ... ' .... · •.. . i. 31/10/2007 . \ .1. .,! \. l .. I c:ertify . that this is a true copy\of the original .. ·r~~ DISTRICT REGI TRA~ MWANZA 7 . I, I I ;"I j I I II II ., .: l' i' 1· I I ,·. I ; 1 ,, ,. I ' I ,, I ,. I ' I I 1 I I l lI II ,_\,, I ,· ,j