19861005 TZHC Tabora

IN THF HIGH COURT OF TA!!Z 11~~I A (PC) CIVIL APPTlJnL N0,34 OF 1987 FROM DIS'T''RICT COU11T CIVIL ,,PP'\',,L NO. 32 OF 1986 B.R L,DI l)JJ'11rIICT YOl'4BO MB.JS I: •• e • . C'I G •• •. c-. 0 .•• ♦ ♦• ♦ u ♦ • ♦♦♦ ,le ■ ~,. ,a, I ♦♦ e ♦ e ■ ■ ■ • • ♦ ■ i, ■ hPPELL;. NT Versus l. KUZ B'NZ A SH IG IllJ 2. JIJ'P1ir,L,NI SHIGIIlJ: ••• , ••••••••••••••••••••••.••••••••••• • RE'SPON'!)B'NTS

JUDGMENT In llimera primary court, the appellant, Yombo iiibusi, filed a suit against one futamani Shigilu for damages for adultery. In the course of the trial, it became apparel'\t thdt the said Butamani Shigilu ,-w.s us int; delay inf, tactics by avoiding service of court processeso It ~as then th~t, on the appli- cation of the appe1Jant, an orde:.:· ,1-.:is ,n:~de for attachment of Butamani's property b8fore judgrrent, and so five head of cattle said to be lone; to Bu tam:rni Shigi lu ;,,iere attached. The present respondent, tuzenz 3. '.3higj 1u: who is a brother of the nutama~i Shigilu, th2n filed objection proc- ceedings claiming th"'t the c3t.tle seized -:mre his own -property ;1nd not those of Bub.mani '.3higilu. In the ensuinp, trial, the respondent gave evidence of brand m~rks on the c~ttle in question. On the evidence on record, I r8spectfully agree .1ith the learned magistrate of the first appellate court th~t the evidence of the appellant fell short of provine, on a bal~nce of probabilities, th~t the cattle attached did belong to lhtamani Sh.igilu, ,,ho is now at 11..rge. On the contre1ry, the respondent, Kuzenza Shigilu, adduced evidence showing that the cattle in question are his own property. In the circumstances, t.he only option left for the appellant is to correctly id(Jntify the proryerty of Butamani Shigilu ,,-,hich can then he attached. If th3t cannot be done, he can attach Butamani's with cos ts.

JUDGE 5/10/1986 \