19880909 TZHC Mbeya

1. '- I IN TKE HIGE COURT OF TANZANL.

AT MBEY (rv) CIVIL APPEAL NO,. 10 OF 1980 (FIoM THE D&CISION OF T114 DISTRICT COURT OF 5 'WANGA CRiINAi3 APPEaL I0. 17 OF 1979, ORIGflrLL CIVIL CASE NO. 16 OF 1979 OF MLTAI IARY COURT) ZOBI S.A4MBA p versus SILIVIOL3 D S ••. ...RE5P0NDENT '!P' J... - The father of the reapondent is said to have died. in 19549 But in 948 be is said to have given to the father of the appellant two cows to help look after. In 1966 the reepndeni clainB be went to see the a.ther of the &PwIlant and that the latter said the cows be bad obtairei from the father of the respondent had. 32 issues. The respondent took - away two of these hea4 of cattle and, accordg to him left the remaUsiva 30 head of cat$le with the father of the respndént. The father of the respojgent died, in I97. In 1979 the re' .pondent sued the aglnt to recover the alead 30 head of ca ttlec, bas Maintained all alone that he is not aware that his late father owed, the late father of tie ponden.. 30 bead of'cattle both in the trial birnary Court and. in the District Curt to which the . .. I aXit bad, ZPMU4 The allant 1359 now rod to this Court. it appeazs frx* the evideme that until, the fatWr of the respondent died in 1954 be had. not 3,aii any Claim aeainss the fahor of the appeUant for any cattle. $econdly, t'hien in I66 the father of the appe11it allesdty admitted that be owed. the lather of -the respondent 32 bead of catti,Q, the

appouant wse.iiot p'*sej1t and, jfl4e43&, no one else was 'preseiit to hear that admission of liabilt4y. .:. . It is also not clear in what capacity the appellant was sued. There has not been any proof that the applant vs the bir oI1js lt :1 father oi the administtor of his esate. The apQllt. haald, and he has not been ontrad.ictod., that during the burial the fatbe\of the respondent it was never mentioned that his (appeii's).-father S - ....2. . N / -4f El * -2- keoping cattle belonging to the father of the respondent, Finally, and as rightly pointed out by the appellant, at the time the suit was filed. in 1979 it was then 25 years after the father of the respondent died. Any one intending to enforce a claim on behalf of the late father of the respondent should, have filed his claim in court as soon as possible aftor the death. The appe3.lant said, the yespond.ent should have filed, the suit within 12 years # üiting jwt No. 10 of 197.T. Of course the provisions of that Act do not apply to.procecdings wider Customary Law ee Section 50 of that Act. ProQeed.ings under Customary Law are governed by The Customary Law (Limitation of Proceedings)Rules s 1963 published, in Government Notice No. 311 of I5i4. Rule thereof which is relevant in this case reads:..

45. Where any. proceed.ing is brought for the enforcement of a claim under customary law for which no period of limitation is prescribed, by these Rules 0 the court may reject the claim if it is of the opinion that there has been unwarrantable delay in bringing the proceeding and that the just d,etermination of the claim may have been prejudiced by that delay." Nor if it is assumed that the father of the appellant infaot told the respondent in 1966 that be still had 3Q head of cattle which belonged to his (respondent 's) father, what made him wait for 13 more years before maki.nS a claim for them ? Considering too that the bead of cattle are alleged issues of two cows put under the care of the appellant 's father as lQng ago a's 19489 why did. he not at least gt the father of the appellant admit the 1abi34ty before some witnesses who would, have include4 men\ber/,,his own faniilr ? Why CUd the respond,ont keen that admission of liability a cloaeà. secret between hims1,f and the father of the appellant.? I have to say with all due respect to the two lower courts that the respondent had not proved hia claim against the appella.n* I therefore allow this appeal with costs and quash the dejslns of the two courts below, - / tA MBBYA J. A. MOSQ 9/9/88 JUDGE Parties present 1 ---