Waiton Said vs Mkonomrefu Pangani ((PC) Civil Appeal No. 107 of 1997) [1999] TZHC 466 (10 December 1999)

... u~~-7 IE '.!.'HE HIGH G)URl' AT MBEYA (PC) CIVIL APPEAL NOo1O7 OF 1997 (From the decision of the District Court of Mbeya at Mbeya in Ci·ril Appeal No.123 of 1996 Before: S. Bongol8 R0sident J'iagistrate) WAITON SAID 000C,0C)Q0,3')01'!0".:'-000 APPELLANT 'JERSl,S MKONOMREFU PANGA.Nl 000000~00000 RESPONDENT JUJJGViENT The respondent, Mkonomrefu s/o Pangani, claimed four heads of cattle from the appellant, \Jaiton s/o ,Saidi, befo:e Chimala Primary Court. The claim succeed_ed only to the extent of one .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. Rene<=> this second a.ppeal in whose hearing both parties entered appearances and told ll'h! court they abided by the memorandum of appeal and Lie written reply to .,.t, respect:ivelye. These material facts were establ:Lshed in evid.ence" The appellant had a deceased elder brother called Kazimot::i whose son, also a deceased, was Laison. The respondent lent four heads of cattle to Kazimoto. One was a calf. The matter was between the respondent and Kazimoto 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 6 athering. The respondent then claimed that after the death of Kazimoto his son, Laison, took a cow to him in payment of his father 0 s debt and promised to pay the rest of the cattle. After a fe,,1 months Laison also died. The appellant I s story as supported by SU1 and SU2 was that before Laison died he told them that he had kept his cow with the respcndent which shall have to be slaughtered upon his death and eaten by the mournerso The ~ppellant th.,::::n approached the respondent for the cow which was then pregnanto The respondent requested the appellant to take another cow instead.. But the appellant in consult'ation with elders refused 0 0 0 0 0 0 0 0 /2

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 r,laim not established in respect of three heads of cattle 1 but established in respect of the pregnant cow giving as their ro&uon the fact that it was conceded that the appellant had taken the cow from the respondent and slaughtered ito That finding was, with respect, a contradiction in termso 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 U1e same time have accepted the story that Laison had taken the cow to the respodent in part payment of the debt The version that the cow was kept with the respondent by Laison was credible arid appealed to reason in all the circumstances of the caseo It certainly was not the property of the respondent. It was the property of Laison. First, the respondent would ;1ot have released the pregnant cow to the appellant for slaughtering had it been his propertyo Second, nobody would havo peri::itted the pregnant cow to be slaughter,':d ha.d it not been in accordance with t1e wishes of jibe deceased Laison. On the balance of probabi- lities, therefore, the respondent 0 s claim in its entirety was not established. I accordingly allow this second appeal, set aside the 1 oncurrent decision of both cs:,r,ts below, and hereby dismiss the suit in its enL.rety. I award costs . ··:·---. to the appellant here and in the two courts below. AT MBEYA. 10 December 1999~ For Appellant~ Present. For Respondent~ rresent. ,] ---- i ·-' --· ........ , --- ...... ------·- ... -Jl"iDGE.