Bunyabe Dubigu vs Mpigahodi Malimi (PC Civil Appeal No. 10 of 1989) [1990] TZHC 482 (21 November 1990)

:.: . -- IN· THE HIGH COURT OF TJU.::.JJHA: · AT TABORAo PC CIVIL APPEAL NO. 10 OF 1989 ORIGilifAL NKOLOLO PR o · COURT CIV. CL.SE NO 126/86 AND B(RiiillI D/COTJ"RT CIV ~ APP .. no. 26/88. Bmffl..BE DUBIGU o-e •••••••••••••••• • h.PPELIJi.NT ~ . VERSUS. r-1PIGA':IODI f.:lALil.1I ••••••••• ., •••••• RESP0I'.-11)ENT. J U D G .l,1 E N T. CHIPETA 9 Jo .. In Baria.di Primary Court at Nko lo lo, the present appellant, BUJ a.be Dubigu/su:ea>the present respondcmt 9 Mpiga.hodi l!Jalimi I for recovery of 2, head of cattle be_ing refund of brideprice. There was no dispute that · the marriage betwee1'.' the appellant a 111 the respondent I s daughter was blessed wj_ th four issues, and it was equaL;y not in dispute that that marriage has since been· disolved. Further .. it was common· ground that some part of the brideprice was refundable. 1 1":e qU.estions in dispute were first, how much prideprice was paid, and secondly how Liv.ch was refund2.))le.., During the trial, the appellant s2id that he paid the brideprice in the form of animals a.l'.ld moneyoccording to the appellant, he paid ·21 head of c:.itle ancl the equivalent of 14·head of cattle in the form of noney -~ . : . "- . . ·- .. at the rate of Shs. 1.10/= per animal, and so there was a balance of one animal" Su.bsequentlyr he paid the balance., 1• •• The respondent~ on tho other hand O said that the agreement wa.s tha;~ the appellant wa.ould pay 11 animals and money equivalent to 21 head of catt:.e, ~ ma.king·a total of 320 · - The trial court ccl'._:afully ovalv.ated. tl'la evidence and believed the _ appellant's wi JGnesses to be·. tru.tbf'ulo T'.uey _Fejected the respondent's evidence as vague and i:;;.l:conclusiveo The tr:i.al court accordingly found· as a fact thc..t a tot21 of 22 head of cattle and. Qaoney worth 15 head o: .' cattle were p1-'.id by the a.pr:ellmt-as bride1-1ea.ltho· applying the customary law of the arear, some eight head of cat·~le were fo'und not tc. be refundable as there were f ov.r issues of the mro-riage. Four of thei. c were d0ductcd from the total of actu.c,l head of cattle paid, t;:iat is 2;.r, thu.s leaving a. balance of 18 actual he2..d. of cnttlef e..nd four were deducted from t:1e figure 15 t:1c.,t was in the form of money, leaving a balance of 'llo . - The +.rial court accordingly held that t:.1e appellant was . entitled to . refund of 18 actual head of cattle and money wortht. hea.cl of cattle 2 -

. . < at the rate of Shs., 110/::: per animal, The rcsponcl.e,1t appealed to Bariadi District. Cov.:r-t. The District Court ·partly allowed the appeal~ It hold that on the evidence, the ;S--.. responderi.t·ts evidence 112.s weightier than that of the _appellant; and so it foun?.m as a fact th2.t the a.ppolln.nt paid a total of ll • actual l1oad and 21 in the fqrm of money 1 malting a total of 32 an?- not 37 as folmd. by the trial cciurto One from each gToup was deducted for what the· learned appellate magistrate referred to as 11 LUSHU" and ' 1 ISw'ANGIL0'.1 and four were deducted from each gTOV.p,:, In t;:ie result the appellate couxt held -tllat the appellant was entHlcc'c to :rcftind of only six actual head of cattla and cash Shs 0 1 'J 760/""' being t:ic v2,lv.e of 16 head of cattle at Shs. , 1 o/ .. per hec:.μio There is ar:1plo au.tl1ol'i ty for the proposition that when the quee tion arises which witness is to be believed a.ther than nother, and that question turns . on i;;,,:.Yl!lor and dcrae2,nour 9 an appellate court alweys is: . a mt1st be, guided °b'J the impJ'.'ession made on the trial judge or nagi ;,tra.te who saw the witnesses., In other words, where the c:rodibili ty of witnesses depends on the manner o.nd dernec1filour of witness a fir·st appellate court should not lightly interfcr0 uith the findings of a trial court. Intorfcrcnco cm1 only be justifioc7.. where it is clear t:1at tl:c trial court misinterpreted t10,. evidence or otherwise was pla,inly wrong. (Sec Pand,ya V .R.) (1957) EoA 336). -In ·the present c2.-se, tho lc2,r11ocl appellate lilagistrate simply st2 .. tod thd on balance tho evidence of t:!..1.c re8pondcnt wns the weightier. · He gave no rco.sons at all for t;,.at find:-.ng. On tlle contrary, tho trial court guvc guod reasons for prof OJ:•ring the appellant •.s evicl'ence. T1J.10 ··appellant~ s wi tnessos were people w:10 had witnessed the pey-ment of 1he first inst2 . .lment as weil ns the final instalment - as apposed to the respondent's witnesses wb.o wore not certain i.f t'.1e s0cond instalment war in fact paid a T1;1ere is aJ.1ot.'1cr matter.~ _i)u:ring tho trJ.:,,l, 110110 of the parties plcr:Llcd or canv2-ssed the question of' i•LUSII!J 11 or"IS:Ul.NGIL0 11 • Tl1e1.t question was 1.ct even 02.nva.ssed by "iihe p2.rt:i.es oi·21er on tho fil·st appeai i:>r before this -cou.rt. It is plain, tl:exeforo f thnt t:.1oso torI:1s w0r0 i:1trodu.c0d into the case ,ry the learned appellutc· ma,gist:r2.te 0 Tb.ere is 2.uthority for ·t1-10 .,_jl"Oj)'"li-tion that as cl general rule f rel .. uf not founded on tlle plc.<irling will not b,., gi--:.""n, (s;-e G§.nd.Y: vi, Cc;1.:i;pa.l' Air Charters Ltd 2 (1956) 23 EoAoCdL. 139)c If n1usw 1 and "IS;·TANGILO" ar0. known to tb.c customs of the areat surely the pari;ies and the gentlemen assessors can be asswned to know about thoct and so would h2..v0 ple8..clod tn.c same 'or canvassed tlletl during ·h:':10 tria1 • .I

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• 3 - for those reasons, I oo of Ji;:10 opinion t:ha-t it We.S not fai:r to introduce those matters. On the basis of tho foregoing, I am of the iriew tha~ the trial court's judg,:nont was ver-J soundo I accordingly allow this appoal, The. judgment of the first appellate court is hereby sot aside and that of tho tria.l court rcstorode The appellant shall have his coats in this cou:rt arid both courts bclowG ( / l /I .· I.ht' i fl/}/ l /l 'At.lJU B. D~ CBIP A, JUDGE •