Maiko Makang'ule vs Mkuta Mkang'ule (PC Civil Appeal No 5 of 1989) [1991] TZHC 2667 (13 August 1991)

!L THE HIGR COURT OF TPJ.JZAJ:UA AT DODOMA (PC) CIVIL APPEAL NO.5 OF H189 .. (FROM 'I1HE DECISION OF THE nisTRICT COURT OF DODOMA_ AT DODOMA IN CRIMINAL AF?EAL N0.54 OF 1988 1 ORIGINAL MAKAHG t \1A PRIMARY COURT CIVIL CASE NO.21 OF 1986 •) MAIKO MK.AWG•ULE••••••••••••••••••••• APPELL.ANT VERSUS MICTJTA MICA.NG' ULE. • • • , •,, •, u • •·• • • • , , ,. RESPONDEN1: JUDGMENT RUHOMBIKA. J: • Thi$ is a second appeal by MWAIKO MKAHG'ULE• The appeal is a(jainst the d&cl.sion. Q£ tlw -i,ot-ri r~,..t. Q/ :Oocl,oma. in C.i v.il Appal o-2A ot 1988 in which that court dismissed the appeal brought by the apllant ag the decision of the Primary Co'Ull't of Makang I wa, Dodoma Rura.l. Distiot, in .Civil, Case ito,21 of 1986,. The·parties to.this appeal are blood brothers, They are at coss-roads with one an~ther and find themselves litigating for the -distribution of the estate of their deceosed father's estate comprised . . of some cattle. The record shows that the respondent. is the elder brother ' to the appellant and was the one ~sponsible for the distribution of the inheritance cattle to·the beneficiaries• including the appellant. The _appellant went to the Primaxy Court of .Makang 1 wa. to claim for a total of 40 head of cattle he alleged the respondent had to make available for distribution a.s inheritanc·e · to the appellant and other beneficiaries. The respondent explained away the appellantls c;taim and told the court a.t the trial that after the death of their mother there remained a total of fourteen head of cattle for distribution. This distribution

• ' was then done and the appelia.nt we..s Jiven some five head of cattle. ' 1 ... , ' ' . The respondent himself re.ceived fi:!.e of -those animals. . Their three isters receiyed one head of catle eaph, and the four~eenth head of .. . . . . cattle was given to the elders in the_locality. . .. /

./ 2 i1he rezpondc:nt ·further eJcplc.inet1 thd thJ cn.ttie left undor his cro:-a bofore the death of their•mother had calved and that the result was a herd of . , some fourteen head of cattle. The appellqnt had no witness to call at the Primary Court. But the respondent /;mo was the.defendant thereaf} called one Wl'.MI LUSINDE, a relative~ This witness supported the respondent •in that he knew there remained a total of fourtean h~ of cattle t-0r districution : s • . l, after the dath of the mother of the pary.-litigants. The witnqos denied knowledge of the forty head of cattle claimed by the appellant The Prin,iary Court found {;xid rightly si} that the a.ppellont 1 s olaim had not been proved nnd therefore dismissed the suit with costs. The appellDnt went double-quick to the District Court on appeal. He lost there again. He then decided to come on further appeal to this eot. He was at first representd by Mr. Rweyongeza, but the counsel had to withdraw from the conduct of the appe3l £or reasons best known to himself• This was on 4/12/90. · Thereafter, the appellant has · been 11 paddl!ng his own co.noe". I · On 9/3/90 the -0ourt ordered for c.d.ditional ·evidence to be tclcen relating to whether or not the eight head of cattle distributed to the beneficiaries of the estte of the decec.scd father of the parties o formed part of thct esto.te. The respondent ho.d oxpln.ined. during the hon.ring o:t this appeal that the eight head of cattle which he the respondent sent to the concilintion board fo distribution ci.i.d not form part of the estte. . . . He scld. thn.t the nnimcls were cti.lved from a cow ho had bought through his own labour end that he had decided to offer those aniID<.us for distribution "through the local concilin.t.ion boar.d so a.s to ·clear the II1G.ttcr ith his brother, the appellant, It appears that the clim by the ·appelllll1.t involves instc.ncos spread over o. long period of time. The a.ppcllont himself clearly accepts to hw.ve received some hca.d·9f cattle on different occa.sions as pn.rt oi tho inheritnncc package~ first, n.Ner the den.th of --their \father, Then o.ftcr tho deth of their raother. The clim of forty houd of . . cattle to.have been in tho hoods of the respondent for distribution is not supported by any evidence.

... 3 It is J bQ.Se.d on mere c_onj_ectμre in that the animals left with the .respondent should have multiplied to forty o.nd that therefore the respondcni; should have made available the forty heo,d of cattle for ' ' . / distribution~ The witness called during tho taking of additional evidence.is a sister to the parties. She actun,lly did not sny much• We should ha.ve expected to hcfrom her ·about wha.t she knows u: rela.ting to the eight hec,d of co.tt.le sent ·to. tho concilia.tion ·bon.rd by the respond.ent for distribution .. Howev:er, had it been thn.t those Mirrus were a.-lso pn.rt of tho inheritance package, she coul(l not have failed to say so. This witness did not either complain that the respondent --·-·-- .. had distributed. loss o.nimo..ls to· them thM expected.. She said nothing ' ' . about tho forty hQt.d of cnttle the appellant claims. It is rather μnfortunate to hQVC to find the two brothers, who are .Pa.rties to this appocJ., ppling over whet should be cru.led " nthe den.d raan 1 s shoes 11. Tho.t is the hen.cl of cc..ttle which :bolonged to their decoooed parents. The parties themsGlves did nothing to c::i.rn tho10 c.nimcls • The appellcnt 1 s claim is wonk. The grounds of uppe a.re devoid • of merit ~d tho c..ppocl crumot stand to succeed. Accordingly, this appeal is &ismissed with costs hero end in the courts below. DODPJ':Yi 13/8/91 nJn= .

• 'h,. .,. (R .1'":L; RUHUMBIKA) .JUDGE Dcllvarod. in chcnbors this 13th dcy of . August, 1991, n.nd in the presence for the rcpondcnt. DODOMA 13/a/91 of the c.ppcllo.ht . .::md the counsel . nJ n ,·_ .. 1( }1 < (R,,-.:t "tt'.UiltJlltBllut) ~

4 0 .. Court: . The appella~:t is inforr.10d of his rights of further apperu. p_QDOI1A 13/e/91 to the Court of Appeal to the Court of Apperu. but subject to: ,)l ' , T • • I

1. ieave to 1:ppeDJ.
2. Certification of a point of law~ ;. Lit1itati.ori period ... lfotic_e within fourteen days~ rtJnc- ~ 1A + (R-:J .L. RUHUMBIKA) JUDGE . .r,'. . /