Waiton Said vs Mkonomrefu Pangani (Pc Civil Appeal No. 107 of 1997) [1999] TZHC 427 (10 December 1999)

., ;;...._,,. MOSHI 1 J. (PC) CIVIL APPEAL NO. 107 OF 1997 (From the decision of the flistrict Court of Mbeya at Mbeya in Ci·ril Appeal No. 123 of 1996 Before: S. Bongole - R8sident Magistrate) WAITON SAID o o o o o o o o ,, .,, o., co· o., o.'l o APPELLAJ\J'T VERSUS MKONOMREFU PANGANI Of>OOODOOOOOO RESPONDENT J'lJDGi'-'IENT The respondent, Mkonomrefu s/o Pangani, claimed four heads of cattle from the appellant, Wai ton s/o .Saidi, before Chimala Primary Court. The claim succeeded only to the extent of orie cow which must be pregnant or its money equivalent. The appellant felt aggrieved and his first appeal to the district court of Mbeya was dismissed. Hence this second appeal in whose hearing both parties entered appearances and told the court they abided by the memoranQ,um of appeal and the written r'eply to it, respectively o These matE,rial facts were established in evidenceo The aprellant had a deceased elder brother called Kazimoto whose son, also a deceased, was Laison. The respondent lent four heads of cattle to Kazin',oto. One was a calf. The matter was between the respondent and Kazi:noto only. The appellant did not know about it and he was not involved in any manner. Kazimoto died and his indebtedness to the respondent was not disclosed at the family mourning gathering. The respondent then claimed that after -:he death of Kazimoto his son, Laison, took~ cow to him in payment of his father 1 s debt and promised to pay the rest of the cattle. After a few months Laison also diedo The appellant's story as supported by SU1 and SU2 was that before Laison died he told them that he had kept hie, cow with the respond.c-nt which shall have to be slaughtered upon his death and eaten by the mourner[,., '11he appellant then approached the respondent for the cow which was then pregnant. The res~0ndent requested the appellant to take another cow instead. But the 3.fpellant in consultation with elders refused 0 0 0 0 0 0 0 0 /2

j'j 2 saying that it would be against the wishes of Laison. So the respondent released to the appellant the then pregnant cow Laison had taken to him which was duly slaughtered and eaten by the mourners of Laison. The respondent then instituted the suit ·against the appellant as the heir of Kazimoto. The trial court as well as-the district court found the claim not established J in respect of three heads of cattle, but established in respect of the pregnant cow giving as their reason the fact that it was conceded that the appellant had taken J::the cow from the respondent and slaughtered it. That finding was, with respect, S\a contradiction in terms. Having found, and for good reasons, the credibility of the respondent about the indebtedness of Kazimoto to him questionable, the two courts could not at te same time have accepted the story that Laison had taken the cow to the respondent in part pcwment of the debt. The version that the cow was kopt with the respondent by Lais on was credible and appealed to reason in all the circumstances of the case. It certainly was not the property of the respondent. It was the property of Lais on. First, the respondent would Eot have released the pregnant cow to the ai:,pellant for slaughtering had it been his pro:9erty. Second, nobody would have pe:rcitted the pregnant cow to be slaughtered had it not been in aecordance with the wishes of jihe deceased Laison. On the balance of probabi- . lities, therefore the respondent's claim in its entirety was not established • . 0 rl I accordingly a:clow this second appeal, set aside the concurrent decision of both courts below, and hereoy dismiss the suit in its entirety. I award costs ,to the appellant here and in the two courts below. ·-' \ ... ' .. : ~ + • I • '• .. . .. , .. ..:; . ,... AT 1 MBEYA. 10 December 1999~ For Appellant: Present. For Respondent: Present.