Victoria s/o Mando vs Yohane s/o Gwangway (Civil Appeal No. 30444 of 2025) [2026] TZHC 2556 (25 May 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI CIVIL APPEAL NO.30444 OF 2025. {Arising from Civil Appeal No 24893 o f2025, in the District Court o f Mbulu at Mbulu, before Hon. V . E. Kapugi (SRM), Original Civil Case No 09/2025 in the Primary court o f Mbulu District, at Daudi). VICTORIA S/O MANDO.................................................................... APPELLANT 06 & 25/05/2026. I.e. MUGETA J; The respondent sued the appellant in the Primary Court of Mbulu District at Daudi for payment of Tsh. 1,500,000/= as compensation of his dairy cow. It is alleged that the appellant lost the dairy cow given to him by the respondent to take care of it while enjoying the milk. It is the respondent's case that on 14.04.2019, the appellant requested for the dairy cow from him for getting milk. The same was given to him per the tradition and practices prevailing at the parties' place of domicile. The practice amounts to almost a hire purchase. That the borrower enjoys the milk while the lender retains the ownership of the cow and the off springs. The cow was pregnant and later, allegedly, the appellant reported that the cow had given birth to a calf. In 2020 the VERSUS YOHANE S/O GWANGWAY RESPONDENT JUDGMENT 1 appellant claimed the cow had died without providing proof of the death. That led to this dispute. The appellant opposed the claim, she testified that the respondent had never given her the said cow. At the conclusion of the trial, the primary court ruled that the respondent failed to prove his claim for two reasons. Firstly, by failure to summon material witnesses who were present when the handover was done. Secondly, that there was no any written agreement between the parties which proved the handing over. On appeal, the district court quashed that decision and ordered payment of the claimed amount together with returning the calf. The district court was satisfied that the case was proved on the balance of probabilities. The appellant was dissatisfied. She has appealed to this court on five grounds. The major complaints in those grounds are, firstly that the respondent and his witnesses' testimonies were contradictory. Secondly, that the respondent's key witnesses were not called to testify. Thirdly, the respondent evidence was based on the testimony of witnesses who had interests to serve and fourthly, that the case was not proved on the balance of probability. The appeal was argued by way of filing written submissions filed by the parties themselves. None of them is represented. In supporting the appeal, the appellant submitted on the first, second, third and fifth grounds jointly. The arguments therein are firstly, that there was no any written agreement between the parties for her to borrow the dairy cow. Secondly, that the testimonies of the respondent's witnesses were inconsistent. While SMI stated that SM2 accompanied the appellant when she went to take the cow, SM2 denied this, and there were also contradictions regarding when the cow gave birth to the calf. Thirdly, that material witnesses, namely, Duse, Maria, and Deemay who, allegedly, were present when the appellant took the cow were not called to testify. The issue of witnesses who had the interest to serve was not addressed. In reply the respondent submitted that the district court decision was proper as he proved his claim on the balance of probability. On the issue of absence of the written agreement between the parties, he replied that the oral agreement was proved by SM4 who was present when the appellant took the cow away. 3 On contradictions, the respondent conceded on their existence. However, he submitted that such inconsistencies particularly on when the dairy cow calved are minor and cannot go to the root of the case. Regarding whether SM2 was present at the handing over the respondent missed the point. Consequently, he ended up comparing his evidence with that of SM4 and concluded that the discrepancies in their evidence does not negate the fact that the appellant took the cow. On failure to summon material witness who were present at the handing over of the cow, the respondent referred the court to the evidence of SM4 who said she was present. He further argued that he was not compelled to summons a certain number of witnesses to prove a fact. He referred to section 152 of the Evidence Act [Cap. 6 R.E. 2023] which I find inapplicable in primary courts though. The issue for determination is whether the District Court was night to hold that the claim was proved on balance of probability. I will start with the issue of a written agreement. Under our law, oral agreement are as good as written agreements. The appellant and his witness (SM4) proved orally that the appellant was 4 given the pregnant cow. According to rule 8 of the Magistrates' Courts (Rule of Evidence in Primary Courts) Regulations, G.N No. 22 of 1964, a fact can be proved either by oral or documentary evidence. This is also the holding in Tanzania International Terminal Services Limited V. Petrolube (T) Limited (Civil Appeal No. 54 of 2022 [2025] TZCA/10 (February 2025) at page 10 and Leonard Dominic Rubuye t/a Rubuye Agrochemical Supplies V. Yara Tanzania Ltd (Civil Appeal No. 219 of 2018) [2022] TZCA 419 (12 July, 2022) at page 15. The terms of the contract were for the appellant to take care of the cow, milk it and put to his use the milk only. The cow itself and the calves to be born would remain the property of the respondent. Therefore, there was full consideration of the contract. Regarding people present at the handing over, indeed, not all of them testified. Duse, Maria and Demay did not testify. The law, however, is settled. It is not about the number of witnesses but their credibility and reliability of their evidence. SM4 said she was present during the handing over. Her evidence is sufficient to support the respondent that he gave the cow to the appellant. Even if she is the wife of the respondent, I have no reason to doubt her credibility and the reliability of her evidence. In my 5 view, the respondent and SM4 are credible and their evidence that the appellant was given the cow is reliable. Consequently, I hold that the complaints that there was no written agreement and that material witness were not summoned has no merits. I move to the next complaint. Is the evidence of the respondent inconsistent? The first pointed out inconsistency concerns the testimony of SMI and SM2 on who was present at the cow's handing over. That while SMI said SM2 was present, SM2 denied that fact. I have examined the evidence of SMI and SM2, it is my view that the appellant has misapprehended their evidence. The process of handing over the cow had two stages. SM2 was present at the stage of asking for the cow which fact was coherently stated by SMI and SM2. The second stage involved the actual handing over. It was done on a different date. None of them (SMI and SM2) stated that SM2 was present at the handing over. The complaint has no merits. The second identified inconsistence is about the cow's calving and the date of calving. Indeed, the evidence of SMI and his witness is inconsistent as to when the calf was or was to be born. However, the issue 1bA is not material to the case as the appellant's claim does not include the calf. Contradictions are relevant when they concern a relevant issue. The issue in this case is whether the appellant was given the cow. I understand the district court made an order that the calf be given back to the respondent but such an order was not prayed for in the plant. I shall revert to this issue at a later stage in this judgment. On the district court's failure to analyze of evidence, the complaint is a summary of issues above discussed. That, none of the present at the handing over was summoned; that, there was no written agreement to prove existence of the contract; and that, the respondent and his witnesses are not credible about the execution of the contract, the cow's pregnancy and when the calf was born. However, I have already addressed those issues above. I also take notice of the fact that some of them were not even raised at the district court but I have addressed them. The complaint has no merits too. The complaint about witnesses with interest to serve, as I have already demonstrated was not argued. A complaint which is never argued is always deemed withdrawn. 7 I move to the order of returning the calf which I reserved. The district court issued orders giving a calf to the respondent. That order is not lawful because it is not part of the claim. According to the form No. 2 (Hati ya Madai), the respondent claimed only Tshs. 1,500,000/= as the value of the dairy cow. No other relief was sought. Therefore, it was improper for the District Court to order both payment of Tshs. 1,500,000/= and the return of the calf. The order for the return of the calf is set aside while the order for payment of Tshs. 1,500,000/= is upheld. Consequently, the appeal dismissed. The appellant is condemned to pay costs nf raco Court: Judgment delivered in the presence of both the appellant and the respondent in person. Sgd: I.C. MUGETA JUDGE 25 . 05.2026 8