Maria Enoka & Another vs Shem Wambura (PC Civil Appeal No. 86 of 1999) [1990] TZHC 472 (7 November 1990)

·I IN THE HIGH COURT OF TrtNZA1HA iT !'1~~1-,.NZA · (PC) CIVIL A@PEcl, NO. '36 OF 19·99 (Fr0m the 1ecisi.::m of the District Court of Tarime District at Tarime in Civil Appeal No. 6/89. Be::fore D.D.Ma.lamsha J:;sq. District Magistrate). 2. l"iJ1.RIA ENOKA A.BUKii OKODHE l ................... - ... 0 0 0 ....... . A,.pellants Versus SHEM W1;.l"1BURA • • •••••••• o. o ••••••••• ; ••••• o • ••• • •• o o .Re:spon·-Jen~ JUDGMENT .SEKULE, Jo The responient to :this appal hem Wambura succassfully suj one . . "Nyagweso for the return of 24 heeds of cattle that had been pai:1 to him (Nyagweso) as bri1e price in 1973 when his iaughter got mc1rried tc the r12sponient. This suit was filei after the marriage he.d bc2n proncunce1 diss0lve1 by a Court of law. In the CJUrse of executing the ie<::ree grante1 to him, the respJOient seize1 or attached a t0tal uf 12 hea1s of cattle frm ~ number f people, . ., claiming the same t0 &e the pr0perty of the ju-igmt::nt ,jcbt;or, Nyv.gweso. The break iwn of the 12 heais of cattle seizej was as f0llows: - ~ fr(.Jm .:ine s. M .. Oming'.), 3 heais of cattle were s,-::izcd; 5 were seizeri from Maria vnoka, 3 fr.;:;m ,:me Oscnao "' Odamo and 1 hea1 of cattle from one 1-1.buka Akddhe,. And these filed objection in the Nyaburong.J Primnry Court·: B. M. Orning•o was -Objector No. 1. Maria On)ka was Objector No. II. " II III. sngo Oiamo was Abuka Akoihe wa_s II . ti IV. i-1.t- the en'.:\ of the pr-:icee1ings, the trial· Court was ?f the unanimous opin-ion that the 1st cibj.ector a. l'-'i. Oming'o hari provei his case, thnt is, his s.bj ection was successful. An1 it accordingly oriere1 th(:: r0turn of the three heais of cattle that were seized from him. The remaining J. three objectors were aggrieved by the -:1<.:::cision and . . they appealed to the District Court of Tarime District at Turime. The appellate District Court allowe1 the appeal of Osango Adam9. Ani ismissei " the appeals of Maria Onoka ani 11.buka Akodhe. These hcivc n:)w c:ippealecl to this Court ani they appear as 1st ani 2ni appellants rcs':_;,:ctively. Buth appeaed in pers::)n-· at the hering ·o-'f this· a·ppeal t th-:·ugh the 2nrl appellant' was represente-1 by Sil a Alara Abuka his s Ji1 as he is -:;)o rJl i ! : . ani sick· to travel. There was .::i 1 etter teniere.i fr Jm his vilL::ge · a11.thori ty, supporting this c -)ntention .• /

2 The re"i:;ponient, - She.m Wambura t.h::)ugh he hai been ·iuly s0rvc:l ·"lii not a tteni Court •. I have carefully consiiered the evi -1 ence m r-::c .:ir-1, the appell_ants' grounis ;)f appea). as weil as -t'.1eir oraJ_. s11bmissiqns,. and I am of'. the .. settlei opinion that the c.:;ncurrent iecisj,cm 0f the two lower Courts was pr'Qpr·. _There was ample eviience inclu.iing their wn udmission to the ·effct that the seized hea1s of cattle belon9e·i to the ju:1gment. •iebtor Nyagweso- Abuka · : I . The 1st appellant, Maria Onaka for example sai1 in cross examination by the responient at the trial that:- "Nataka Nyagwes.) mwenyewe n·iiye aje akupe ng I ombe hao kwa vile yeye niiye aliwaacha. kwangu". I,ikewise the 2n1 appellant in response to cross axamin.:1tion by the · responient also sai·:l as f0llows :- 11.Siwezi kutoa ng 1 ombe wa mtoto wangu kumlipia deni ila yeye mwenyewe n1iye aje amchukue alipc 1eni hil o mwenyewe 11 • · The 2nj appellant is the father ·of the juigment iebtor. This in my viw is clee1r aimissLm on the part of the ap;,t:llants th:.t the s_cized hais of cattl-= belongei to the juigment -iebtor, NyugwGso i;bUkD .• of I have also faile1 to see how the appeal/Osango Ki □ mo wcs allwed by the appellate District C.)urt as he too clearly aimittcj :.1t the trial that the seize-:\ heeds of cattl 2 bel Qn<;ei t-,.) the juigment i·le:btor - Nyagweso.• He state1 as follows:- "Napinga kukamatwa_ng'·,.)mbe 3 nyumbani kw,rngu kwa sababu Nyagweso ambaye ni rnwenye ng 1 0mbe hayupo, haitwa aje atoe ng'ombe y2ye rnwenyewe. Haya niio maelezo yangu".· Be that as it may, since the. re'sponient 1oes not appear to hr:ve u-ppeale1 agninst this iecision, I will say no more on this matter. Both appellants contend that th;:y never a1mittei at the trial that the seized he·a1s of cattle bel ongej to the juigment debtor, cmd that the aimission a ttributei tu t:.2.:r1 in the recor:i of the trial Court, was simply a mistuke on the part of the trial C-:)urt in r8cording what they had sai ;. I have not been persuaded by this argument. The recurc1. is loud an1 clesir. }here are no ambiguities. And where c...:,uli th.:: trio.l Court have got these cl eur a·-Jmissions, if not from the appellants· themselves. ;i: am therefore satisfied that these appeals are.with,:.·ut r:-i~rits an·.1 are hereby •iismissei •. I make no orjer as ta cost_s as far as ·these · api?8al s to this Court are c0oc·ere·1, dS

• ·! . The appeals are jismisse1 .• -W. H. 3EKULE JUDGE 7/11/90

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