Tosmindo Kabogo vs Gaitani Ngengena ((PC) Civil Appeal No. 5 of 1979) [1980] TZHC 110 (12 June 1980)

IN LHE if IGH COURT OF ANZAIIA - — AT IVtBEA 24 s" (pc) CIVIL APPEAL NO. 5 OF 1979 (om the decis ion of the District court of Iringa at Iringa in Civil Appeal No. 5 of 1977) BEFORE: S. N. SHARIANY t E SQ. t DISTRICT MAGISTRATE 1DYISINDO KABOGO .. ..... .., ... . . . . . ... . . . .• . .. . . APPELLANT versus GAITANI NGEGENA .. . ,• . . • ••, . . .. • • • . . • • • • . • • , • . , RESPOMDENT SAMATTA, 3., - This is a second appeal. The appellant sued the respond ent in Miolo primary court claiming two cows which the latter had allegedly refused to hand over to him. The respondent, in answer to the claim, claimed that the two cows were his own property. He aserted that the two cows were the remaining portion of the estate of his late father. Each party called several witnesses to support their claims. The primary court magistrate and gentlemen assessors who heard the case with him were of the unanimous opinion that the truth of the case lay in the respondent's story as supported by his witnesses. They accordingly en:tered judgment in his favour. The appellant was aggrieved by that decision. He appealed to the district court against it. The district court dismissed the appeal, holding that the primary court was right in reaching the decision it gave. It is thatdecision which is the subjectmatter .f the present appeal. There can be no rational controversy as to the fact that the decision in the case depended on the evidence which was given. The primary court enjoyed the advantage of observing the demeanour of the witnesses who gave evidence before it.

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• - 1,• . ., .. . r ,_• '. I T I -2- After having recox.ed additional evi4ence, the district court shared the opinion which 'the primary court had reached in the case. The appellant now says that the district court was not entitled to reach that opinion. I disagree. The respondent's case was corrobratedby the son of the appellnt, one Antony Kabogo, among others. This witness concluded his evidence in examination-in-chief with these wonis, in Kiswah iii: "huyu rnzeeat is the appe].lantJiana haki kabisa kudai ng'ombe hao wawili." This is the evidence of the son of the. appellant, a person who had had every reason to support him (the appellant), since he stood the chance of inheriting the appellant's estate. I am satisfied that the voice of justice commands me to dismiss this appeal. Like the two lower courts, I am of the opinion that the appellant failed to establish his oases Idismiss the appeal with the usuaIconsequences.' • t. • n . - - . B. A. SAMATA i. •. JUDGE

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• ) Appellant p±esOnt Re'spondent rsetDt • • •• June12.1980. . . •' L . . L . — - 1-