19750924 TZHC Arusha

.4 IN THE HIGH tCOURT OF TANZANIA AT ARUSHA 34 (PC) CIVIL APPEAL NO0 161 OF 1973 . (From the decisior of the Disirict Court of MBULU • at MBULIJ in Civil AppealTNo..' 25 of 1973) •: . .* YOHANA BURA ----------- ------- -----------.- APPELLANT : e. (Original.Defendat) ,versus . ... . • . LUUMI MdI ------------------------------RESPONDENT (Original Plaintiff) J U D G E M E N T Nyalali, Ag. J. Th.s is a second appeal by YOHANA BURA from the judgoment and decreC of the primary Court of Mbulu District at Karatu where she had been sued by the respondent in this case, namely LUUMI MOI for recovery of three head of cattle, The primary court gave judgémentin favour of. ..the.respondnt. The appellant was aggrieved by theprimary. court. decision and she appealEd to the District Court but she was unsuccessful. She ,l- as. appealed to this Court. •. ....... .. . Briefly the facts of the case are that some years before 1966, the appellant's husband and the respondent jointly'hought a cow which was kept in the care.ar?d cust.Øy the appellant.'sFyhusbafld •1 and •jn the course of time, the.original qow re.prpducedmany tImes. In 1966 the appellnt 1 s huShnd and the respondent Uvided up the joint cattle between thms1ve8. - The respondent's cas6 -*-'i§ that on i aiôn, after the cattle had been divided up, the appellant requested the re.soondent to al:ow her to keep one of respondent's cattle for her milk requirements and the respondent agreed. Sometime in 1971 the appellant sent one LAURENT MOYI (P.W 1) to inform the respondent to come and take his cattle. Respondent went but appellant could not give the cattle, to respondent on this occassion apparently because she claimed that. her husband was away in jail. The respondent returned in 19.73 to claim his cattle which by then had multiplied and totalled 3 in number. The appellant's husband was at home this time and he refused to allow' respondent take his three cattle. The appellant!s caseS was a complete denial of this claim. On a perusal of the record, it is apparent that the two lower courts failed to consider two material points in the case, One of these points was directly raised in the petition of appeal and th other was indirectly raised in the same petition to the district court. The two points also appear in the petition of appeal to this Court. The first point was whether the appellant could have entered into the milk cattle arrangement with the respondent without the appellant's husband being involved. As I have said neither the primary court nor the district Court considered 'this point. That being the case, it is open for this Court to consider the point on the evidence adduced at the trial. From the evidence adduced at the trial primary court, it appeats that the appellant's husband was not involved in the milk cattle arrangment, if there was any such arrangement. It also appears that the respondent alleged that he agreed to leave the cattle at the appellant's home The evidence also appears to show that the head of that home was the appellant's husband and was recognized as such by the respondent, otherwise the respondent would have taken his cattle in 1971 without waiting for the appellant's husband to come out of jail. . . . . . /2 -.2- Now the question to he asked .iswh'ether it was likely that this milk cattle arrangement under which the cattle was to be kept at appellant's home, could have been made without the head of the home being involved, especially when the appellant happened to be the....wfo.. of the. head of the home? I think that had' 'Iöwer ourts considered this point, they would h,ave found tha;t• 'it was highly unlikely that such arrangement could have been made0 , The other point fortcor1deationis whether it was likely that the respondent would not have teken his ,catlle in'1971, if the appellant had called him to come and take the cattle0 This pp t'.WasE'n'ot considered by both lor courts. Now since the respondent claiied that the appel1nt's husband was not involved in the ar'rangemeht and that he found 'the 'husband 'away from home, the lower 'courts would have found that it is'highly unlikely that the respondent,woeld have agreed to wait for the husband to come out of jail0 th satifiéd that had the twellower cout spedi'fially considerc' these points, they would have come to the conclusion that, the respondent had not provhis claim against the appellant. I will therefore allow this appeal with costs to be paidby responunt to the appellant and it is orJcre accordingly. Since both parties expressed the wish that this judgement should be delivered to then n.arer hom3 to save them from the cxpeae and inconVenénce of trava 1 ]ing to' Arusha to take judgement, it is hereby diected thijud'gementbe read and explained to the parties by the Distrit MagistatepfMbult, District at Karatu ani that a 7coLyoi supicd to the District Maistrate.for:that pup'oe.' ' 7 -- F.L. NYALl, RUS-1A ig Judge 24/9/1975 /Kimathi •-; , , ' , , ,. ", '