Fadhili v. Lengipengi (PC) Civ. App. 31-A-69; 16/11/70; Kwikima Ag. J..

 

Fadhili v. Lengipengi (PC) Civ. App. 31-A-69; 16/11/70; Kwikima      Ag. J..

The appellant successfully sued for domestic animals and the offspring entrusted to the respondent by the deceased appellant’s mother. The District Court allowed the appeal of the respondent on the grounds that: (1) the appellant sued only after his mother’s death and not during her lifetime. The suit must have been based on “retold history from the neighbours.”  And anyway the respondent had reported the death of all the animals to the deceased when she was still alive.  (2) The claim could not be sustained “without documentary evidence and without eye witnesses to say that the goats and sheep did not die and that the  appellant did not report.”

Held:  (1) “With due respect to the learned District Magistrate, his reasoning is bad at law. The court which heard the witnesses found that the respondent had received the stock from the appellant’s deceased mother and had kept it till her death. If the animals had died while in the appellant’s custody, the trial court found it improbable that the deceased had been informed. After all it is easy to allege things in respect of deceased persons since these persons cannot be called to refute them.” (2) “In African custom business is transacted without documents. Writing as such is an innovation which is only familiar to the sophisticated young who have had opportunity to receive coaching in the ways of the Whiteman. The appellant cannot be blamed for not acting during his mother’s life, either. The reason is simply that the animals then belonged to her and any claim by the appellant would not have been entertained in a court of law. The appellant had capacity to    sue for the animals after inheriting the from his mother. (3) Appeal allowed.