19710703 TZHC Mwanza

W\ IF Till PIGII CC:UFT O1n:1..I:. lT TlbTlA Appelleto Jurisdiction c) CBTII APi.AL FO. 141 OF 1970 (lroo thd ddcisj Oil o1 the district e ourt of :drtba in Civil llppcc1 ITo. 6e/1970 o_oio J L 1,51 bol io Lc , dstract str to - Ori n 1 Ci1 Ca so No 149/69 of ITdweoiilo pnilmory court. ISE1dMC0I1A • .............,. •....l..............,. .. AI'IELIAiTT versus Ill.11TO iItJTfTAYOLA a . . • . o JUIXF.TT'TT 4 IUL9/J lllELlG-A, Af.J. The apc1lan Vordinna Ishengooia s LIQJ the respondent Footo Lwabutonbwc O.Futryoba in the p-iiury court ot Ndwni10 the rcovcry o:T a 1a;eb. :.l ,000/.-. The apr ilani uon the clain but on appe1 to the di etnict C ou.rt, Fe loot it and she non appeals to this Court. it the br , before the pniracry court, the oppc11ec cdlcd two - itse in suppor of her clam md the respondent ecliod only one On appeal before distrtc court, the rospondt ello cd inter clia that his ci;bnc.scses acre not allowed by the priroary court usgistrt.o to ive evidence fJLi7jlOrt of hi clam and that the prinary court :ea1istr ;o inspected th"o suit chceLha in thc- respondent' s absence • Tiied istrict ror istro upheld these cround s as a basic. os which he 'ecordod further avid onc o fran edditi anal .iauceses called by the rospondost and no rise visited rae suit lone. On clraulniral bho pninory court record, it is noted that after the respondent' a sole winôss bad ivaa evidonc C there is no :Lndicotion whether ra not the reoponcent wanted to coil ±'urbher witnesses. llao -becnco of any such indication a.y have caused the district er istrote to tiinh. ih.t there lit be sorb tilaill in the respondent's eilcClation, that hic bYltilosses were not allowed by the p -Lr.lary court to dive evidence. This 1:ind of probleel hoe cone up on appeal on a nunber of occasions, end in order to avoid prolonged J.ttigation arising w such a problou, I think that it is dccirabio tht nhee a nerty closes hi..s cae he should be node by the tnie.1 to stato in cu-rn torus whether he lies±lony further ovidonco to adduce and his reply thereto thoald be duly recordid' As indicated darlior,ti-ic district isa istrate hoard evidence fron 2onr additi onal nitn CLSOC for the rccpondeisrl nd when ho .aau a the appellant ohs scid that she did not have any other \anibCSseS otilor than one John riwogosola. The arid John Lviegobola had given evidence before the aries. ry court end li.e:refore he did not :ivo cvidce again before the diedniet court. Thc issue tob decided in this case depended entirely on the credi- ty Of witnesses. The eppcllant' s witnoc a had told Ike pnisiry court GIiLr the disputed ion belongs to the appellbnt, adding. that in fact it was bc in his capacity as cduini strator for the appellant' s :h thai. who allocated the lend to tiac appal ant • The prinory court siagistreto b clievcd this nitnoor, and rejected evidence given on behalf üf ti:e respondent. . . *2 Respondent t s .i.t:eceseo who wore called on apc-ol on tllC other hand tel the district biosreto that :Lltd to th. ppollurt durira: the distribution of her frther' s estate, The district a., istrate belioad those wi tneeo and accordily found for the rcopon.ont. As indicted. earlier, the coca depended entir alLy on the credibility of witncsoes It uould seen that the court would be in a position to assess the ciore effectively. if it ha tii opportunity of scoini and loani:ep; air cocos for both sides It Ia quite char that the district aarjstrate only baIrd said sow the. re polleent' S \aIr cacao, he did not hay: he opportunity to watch the d ocloccictir of tliO oppoll 'nt' 1: nit: ccc or crtnoEjses in tbc citneos box and had lie done so I an unable to say that lie would nacoor:cnily hove rejected 'tb.; evidence given on behalf the ppc1lrnt. In ilic r.su1t, I set aside the judynents of both courts below and order tlir a tc case be h:a.rd arcsh before another primary court s trato, Thoc ace should be trio CL on the same court ices which wore piCL preous1y ~. nd tho parties should adduce all their ct cnce before , the once ma:is'tr4'ho. I believe that the question of croeibilrty could ha dealt arab acre dffcctivdly this way if it is decided by the court which hCL the opaortunTiy of sceiny and liacnirir witnesses for both parties'. I nab: no order or costs in this appeal hcc:e no panty appeared before no. Dcliv crod Ln Court at ]LLiwc'nza on had July, fL 71. : A1.JUDC'1l. Appellant and riso:edent absent - unrepresoYTbod.