19760408 TZHC Mwanza

-.fr- IN THE HIGH COURT OP TANZANIA AT I'IJAUZA APPELLATE JURISDICTION (Pa) CIVIL APPEAL NO. 94 OF 1975 (From the decision of the District Court of 1usoma at .J1usoma in Civil Jppoal No. 155 of 1974 - Before J UBONEKOsci., DISTRICT iCrTlljTE nd Orinrl Mugangd Pr±mary Court Civil Case No. 26/74) TIBU NYAI1BAL:LA ....... ......•............... APPELLt.NT Versus BI.- NYAMBOFU RESPONDENT JTJD(fliENT IMLFALILA, J: The appellant appcalco. against the decision of the District Court at liusoma dismissing his appoal against the judgment of the Primary Court of IIUSOiPa JJistrict at hugango, in which he was ordered to p'r the reep Dndent six heads of cat;1e. The appellant is the respondent 's' uncle. Sometime in 1966 in Aarch to be exact, the appellant's elder brother TIKIRO gave the respondent his nioce a femdlo calf, in memory of her mother his sister who Ned died in childbirth. As the respondOnt had no plcc to keep the calf, she entrusted it to her uncle the a ; pellant and asked him to keep it for her. In 1973 when the respondent was marrying off her son and needed cattle to pay the cessary bride price, she approa- ched her uncle the appcl].ant and asked for her animals. The appellent told her she could Ii... ye chom, and ravo her three heads of cattle. He said that the original calf had in the meantime given birth to two calves making a total of three animals including the mother. The respondent disputod this sa- ying that the original calf hr..d in the meantime multiplied to six and this was the number showas claiming. Both the primary arid the district courts accepted the respondent's claims that her calf had multiplied to six in that she had given birth four times and one of her own calves had given brith to one calf, and ordered the appoflont to refund this number. In this appeal the appellant repeated his stand that the rospendent is only entitled to three heads of cattle. Throuaout the record of proceedings, I did not see d.ny place which in any way •upportcd the respondent ' s c1aim. On the. contrary her claims were comple;ely destroyed. She said that her uncle Tiiiro would Ges1fy Uo her allegations' regarding the 'i'th of various calves to her original calf. But TikirO denied any such knowledge when he gave evidcncc. The respondent told another lie. Sho claimed that at the time her uncle Tikiro gave her the calf, it was pregnant and that it gave birth :o a calf in Eieptemhor, 1966. Tikiro knew nothing about this, hence the confusion by the district magistrate who hold * that the original celf first gave birth in 1969. In the result I am satified that the evidence on record did not establish the respondent's claims the.t she is onti- tled to six 'heads of cattle and nt three as statod by her uncle the appellant. The lower courts should not have ieadi1y acted on her without proof.. In the circui:stances the eaest thin to do TTfl.S to accept .tho 2 appellant s version who in any case had the original cow under b:Ls care. If in fact the rospondefli s original- calf had multiplied toi>: then the rcspondent has only herself to blame for not taking proper stóis to dtahlish the birth of och calf voryti o Gh1 hc jjCiO Per those roason allrar o] nnd Ect si e the th order that the judr cnts of both the 1 or corC respondent'S rights arc only limited to three hQads of cattle as stated by the appellont. L JUDGE MWAbZA PRILl -