Mwinyile v. Chilomate (PC) Civ. App. 39-D-70; 25/8/70; Biron J.

 

Mwinyile v. Chilomate (PC) Civ. App. 39-D-70; 25/8/70; Biron J.

The plaintiff sued the respondent in the Primary Court of Mwitikira, claiming two head of cattle as recompense for grazing and looking after the respondent’s 60 head of cattle. The assessors, who sat with the Primary Court Magistrate, held that the appellant was entitled to one cow for looking after the respondent cattle. The Primary Court Magistrate, however, contrary to law, disagreed with these assessors and awarded the appellant two cows. The District court Magistrate on appeal, very rightly remarked on the Primary Court’s failure to comply with the proper procedure before Primary Court which is that in the event of a difference opinion between a magistrate and assessors or any of them, the matter be decided before a Primary Court by the votes of a majority of the magistrate and the assessors or any of them the matter be decided before a Primary Court by the votes of a majority of the magistrate and the assessors present. The District court which sat with assessors went even further and directed itself on the Wagogo customary law, that where one is entrusted with grazing and looking after another’s cattle, as recompense for such care of the owner’s cattle, he is entitled only to the milk and manure derived from such cattle. It, therefore, held that the appellant was not entitled to anything, since he had enjoyed the milk and the manure from the cattle he was looking after. The appellant, in respect of Gogo customary law, submitted that when one entrusts his cattle to another to look after and graze them for him, they usually come to some agreement as to how many of the offspring the person looking after the cattle should receive as are ward in addition to the milk and manure enjoyed from such cattle. As makes sense, the appellant said that this additional reward would depend on the number of cattle and the length of time during which they are herded by the recipient of the cattle. The appellant stated that the respondent had agreed that they would come to some agreement as to how many head of cattle he should receive, in addition to the milk and manure enjoyed, when he was ready to collect his cattle. But later the respondent refused to discuss any such arrangement, and re-took possession of all his cattle, which had by them increased to 59. The appellant further explained in answer to this Court that the 50 head of cattle entrusted to him, consisted of 20 bulls, 20 calves, and of the remaining 10, only to give milk, and two others were pregnant when re-taken by the respondent. He further stated that he looked after the respondent’s cattle for whole year.

            Held: (1) “I see no reason for not accepting the appellant’s statement of fact, as it is not inconsistent with the evidence adduced before the lower court, nor do I see any reason for disagreeing with the appellant’s submissions on gogo customary law.” (2) “In all the circumstances, bearing in mind that the offspring were limited to three only, I consider that the decision of the assessors who sat with the Primary Court Magistrate, was the proper one and it is not irrelevant to note, that the appellant in answer to this Court, declared that he was satisfied with the opinions and decision of the assessors of the Primary Court.” (3) Appeal allowed. Appellant to receive one cow.