Ulijah Lufiroo v. Mwakinomo Mwakaje (PC) Civ. App. 213-D-1968, -/6/69, Saidi J.

Ulijah Lufiroo v. Mwakinomo Mwakaje (PC) Civ. App. 213-D-1968, -/6/69, Saidi J.

            The appellant bought a cow from the respondent with a guarantee that in the event of the cow dying within 6 months, the respondent would take back the carcass and refund the appellant the sale price in full. The cow died within 2 months and on respondent declining to meet the guarantee these proceedings were commenced in Rungwe District.

            Held: (1) “Leaving aside considerations of the validity of the condition imposed by the buyer on the seller at the time of bargain over the cow the court should attend to what exactly the parties meant with the words “in the event the cow died within 6 months”. To me it seems that these words express a demand by the buyer of a guarantee that the cow in question was of a good quality and was free from any hidden defects or disease that would be difficult for him to find out by mere observation. This may appear strange but it is common amongst Africans in the villages to extract a form of guarantee from the seller of certain local articles or animals. The European doctrine of Caveat emptor (let the buyer beware) is not strictly applicable amongst Africans in the villages to extract a form of guarantee from the seller of certain local articles or animals. The European doctrine of caveat emptor (let the buyer beware) is not strictly applicable amongst the majority of Africans …….. The words “in the event the cow died within 6 months” must also be construed with caution. The condition did not apply to any type of death of the cow. It would not apply if the buyer

slaughtered it or starved it to death within the period of 6 months. I think the condition applied to a very limited range covering death caused by a disease of any rype proved to have been in the cow at the time of sale. Certainly if cattle disease such as anthrax swept the locality and the cow then died from this the condition could not be involved. In the present case the cow was in fact killed by a hyena. I agree with the learned District Magistrate that this form of death was outside the condition imposed by the buyer. That being the position the respondent could not be held liable to the refund of the price as stipulated.” (2) “The appellant’s claim was more over time barred. The cow was bought by his father bout 10 years age.” (3) Appeal dismissed.