Masheku Ndembeje vs Bugurama Nchemba (PC Civil Appeal No. 91 of 1998) [2000] TZHC 62 (16 November 2000)

fllGH:COUR,O' TANZANIA. . . ... ' •. ...• (Mwanza Registry) . .. . PC CIVIL APPEAL PO o ''9lQFr. 1998 '. (From: the decision of th& District Cd1rt- of NgU'd . .: . . District at Kwimba in Cvii Appea. 7o. 52 of .1997 Befor C.J0 'Kanitta, . Distrit Magisirat-e '' ..... and Busongo Primary Court Original Civil Case No, .1 ."of 1996) .: '• . '. . . . . . .. . ... . . MASFtKtJNDEMBETE SboOoe,bo*ø.o,.o.o.000.0000o . APPEtSANT VEPStTS: ..... .. .. . 1. . BUGURJ\NL. NCHEMBA. oo cooeaeo.0 00000 00.. 00 0000 0 0 S• • RESPONDENT JUDMENT This appeal arose from executionproceeding whreb €he "apeIlant attached 10 headof Cattle allegedly: be1ong'ng to one SNGU BUGARAMA: It is gathered 'fm th rOcedings 'that "the ape11ant•MAS}KU... H' had instituted c i ri Wnai ôàse against Singu for injuries 'alle gedly . ,. inflictedTon the apel1ant. 'Sinu was dervibted, sentenedto Six moiths:. imprisonme' and was oideed to pay shs1',000/- "to the appellant e . compensation in respect of the injuries he sustained 0 There was no:appeal:' ' . preferred against : the Crimina1case nor.,, was 4 c shs.1,000/- cqnpenation. paid. . , .....". . For clarity purposes I find it worthwhile making the facts of the case clear. Masheku Ndembeja is the father in law of Singu Buga1a 1\Ichemba is the father of Singu, Masheku after winning the cridnal case against his son in law instituted the present proceeding. The trial primary court granted ex-parte judgement to the appellant for shs.LI00,0001_. for the alleged injuries caused to the. appellant by Singu. The judgement was given ec-.parte for failure bj Singu to atted court to defend the suit. That was on 29/2/96. . . . ..

Then the decree holder cwi the.. appellant successfully applied for attachment of 10 heads. of.ca .ttle pur.ortedly being the value of shs 0 koo,000/—, . .. •.'. / The primary court's..proceedings,are soo. confusing, for the evidence on record does not set out, clearly as . on whom the 'heads of cattle were found and then attcched,But tluough a thorough reading of the proceedings it is appare-it that the ten heads of cattle which were attached were found at the homestead of one MA&[PUELDcANa (Pw'+). This witness claimed that he" knew the 10 'heads of cattle and others as being the property of the' .respondent That he kne them' for the past seven years and that he was keeping them in custody on behalf of the respondent, for he was getting advantage of using the animals for farming. Singu Bagalama (pw2) and Deus Ngosha (Pw3) both confirmed the evidence of the respondent (pwi) to the effect that the ten heads of cattle belonged to nobOdy else except Bagalama 0 Like pwl and PW1+ both pj2 and Pw3 strongly denied that Singu had any heads of cattle. The trial primary court heayiiy,re1.,ed on the. evidence of the'.. appellant's daughter, Sato. (DW2)., the wife of Singu. who 'claimed.that the 10 heads of cattle attached were th;pràperty of her husband and.hese1f because they bought them in 1-993. Upon her evidence the. trial..court. gave judgment holding that the 10 heads of cattle were Singus propertyand that the respondent (Bugalama) objecting to the attachment.for the sake of restoring them. .ig.ala (flow rep'ondent) appealed "forn that finding and order' to the district court 9 I havèread the judgemént of the 'diáict court 0 I hav iioted 1. that the..learned District Magistrate did o"±ead the proceedlng& of the :primary court meticulously, 'pr if he had done so he would havé realized that Elikana Mashamba (pL did 'testif at the..tial and, therefore, the quarry as why he was not called to confirm whether or not

• 3 - he was' in posession' of Singu s cattle would not have arisen., Infact Elikana (pWLi) cnfirm'd tha't1ie lb heads of cattle attached belonged to the respondent and not the jugement debtor (Singu),. However, the appellate district court came to a rightful decision when it came to th concluio:a that there is no law that requires that debt a owing to an independent adult son is transferable, as a liability to the son's father, Singu (PW2) was an adult and was married. Since there was no cogent evidence proving that the 10 heads of :ôattlewère Singu' s property (the judgement debtor) the primary, . court went: oit of its way to direct attachment against therespondentis property.• The : attachment was therefore unlawful. With respect, I agree with the District Court that Sato's evidence could'not 'be fêlièd on 'a sole evidence to believe that the 10 heads of cattle were bought by her and her husband - Singu 0 Her evidence is doubtful because she is the daughter of the appellant and for that reason it is not impossible that she gave evidence the way she gave to favour her father. Her evidence is also doubted because of what hè"told the trial court in examination in chief: f or she said aNaelewa ng' ombe walikuwa wa MkweUma" - meaning: "I know that the cattle belong to the father in law". From that statement it does not mean that the cattle belong to her husband, . Singu. Also the statement nNaelewa tulinunua hao rig'ombe, tulinunua 199319, appears to be a too general statement to infer that the heads of cattle belong to her and her husband. It could as well mean that the cattle were bought by her father in law as a family property, • . In the light of the above observations I am satisfied that in the final analysis the district court came at the right conclusion that the appellant did not adduce sufficient evidence on the balance of probabilities to confirm that the 10 heads of cattle were the judgement debtor's property. In the result I Dnfirm the judgement of the district court and decline to uphold the decision of the primary court. And for