Walton Said vs Mkonomrefu Pangani (PC Civil Appeal No. 107 of 1997) [1999] TZHC 240 (10 December 1999)

IN THE hlGii CU[Ji JF Li1ANIA kT MBEYA (PC) CIVIL .PPEAL NO,107 OF 1997 (From the decision of the District Court of Mbeya at Mbeya in Ciil Appeal No.123 of 1996 Before: 80 Bongole - Posident Magistrate) WAlTON SAID APPELLANT VERSUS MKONOMFEFU PANGANI , 0000000000 RBPONDENT JWGMENT • - MOSHI, J. The respondent, Mkonomrefu s/o Pangani, claimed four heads of cattle from the appellant, Walton s/o Saidi, before Chimala Primary Court0 The claim succeeded 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. Hence this second appeal in whose hearing both parties entered appearances and told the court they abided by the memorandum of appeal and the written reply to it respectively0 These material facts were established in evidence. The appellant had a • deceased elder brother called Kazimoto 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 thC respondent was not disclosed at bhe family mourning gathering. N The respondent then claimed that after the death of Kazimoto his son, Laison, took a cow to him in payment of his fathers debt and promised to pay the rest of the cattle. After a few months Laison also died. The appellant's story as suppded by SU1 and SU2 was that before Laison died he told them that he had kept his cow with the responden.t which shall have to be slaughtered upon his death and eaten by the mourners- The appellant then approached the respondent for the cow whioh was then pregnant The respondent requested the appellant to take another cow instead. But the appellant in consultation with elders refused j'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 c3urt as well as the district court found the claim not established 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 the cow from the respondent and slaughtered it. That finding was, with respect, 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 the same time have accepted the story that Laison had taken the cow to the respondent in part payment of the debt. The version that the cow was kept with the respondent by Laison 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 Laison. First, the respondent would not have released the pregnant cow to thE.pellant for slaughtering had it been his property. Second, nobody would have permitted the pregnant cow to be slaughtered had it not been in accordance with the wishes of he deceased Laison6 On the balance of probabi- lities, therefore, the respondents claim in its entirety was not established. I accordingly allow this second appeal, set aside the concurrent deiion of both courts below, and hereby dismiss the suit in its entirety. I award costs to the appellant here and in the two courts below, AT MBEYA. 10 December 1999

• For Appellant: Present, For 1espondexrt.: Present. B.P. MOSHI JUDGE,