Mgandilwa & Another vs Wiskes M. Mpembela and 5 Others (DC Civil Appeal No. 10 of 1999) [2000] TZHC 256 (26 September 2000)

• *4 CbUQI IN THE HIGH COUI?]1 OF TANZANIA AT MBA DC CIVIL APPEAL NO. 10 OF 1999 1 • 1ILSON MGANDILWA ) D.E.D. MBOZI DISTRICT coNcI)A TS VERSUS 1 0 WISKES H. MPIB]1A ) 2, JACKSONMItUSUNGA ) ON-i;'1KPNDYA k.A KoNYA ) JfYiES N. NSEYE ) DATJD N. MWPJ'iLIMA ) JUDGEMENT WAMBURSSA.NQ 'p (E.J) ' This' apeal 6iginates froi the decision of the District Court of Mbozi whereby the"appellthiti:'biefly appealling against the whole judgement praring that thicôurt sets 'asid all,'the' orders passed there: . from, mainly,the decision ' 'that the áellants':did not have legal arres .t.ing : :powez as he was nol a justio of ''eac'è' thu the''ai'rest of the six respondents was accordingly unlawful and the " "order'to compensate the respondent atotal of Tshs.200 1 000/=. each apart fmrn the order to be refunded Tshs. 52,000/ each which is not being 1isputed. 'urg this appeal Mr. Luanda uried that the arrest of the respondents as done by the apelLnts was in lawful compliance with the order given to him y' 'his toss 'the Division Secretary apart from the 'fact that he ; as aitizen has his persoralrig!ts of arresting a.criminal as jTvwiiLed for. u/ss 14 (c) to 16 (i) of the Crjial Procedure ., 1 985k Thus the arrest. was a lawful one and no unlawful' as ruled by the trial court. Mr. Luanda further urgued that the, trial magistrate, failed t. evaluato 'the evidénc as the appllant only' arrested three respondens and did not arrest thf1t, 2nd and 5th6'espondents so ther,order to compensate all the.,,six respondents far a Edth bf Tshs.200,000/= each was unlawful. So, 7 the reasons stat1 above he f.:ul 'finally prayed that the appeal be allowed with costs, Mr. Mbise appearing for:t.herespondents bitterly objected to this saying that the appeal ouht to. b. dismissed with costs.hecus-e the appellant used fore

4, -2- . 14 to arrest the respondents as he was not ordered to p so by the Dikrision Secretary 0 He said apart from arresting the respondents, he denied their bail until thq paid a sum of Tshs.52,000/ whereby they were released and where not charged. It was Mr 0 Mbise's further submission that d.spite the fact that there is no written proof that the Division Secretary iued such on order, what the appellant did was contrary to the spirit and procedure of Sections 1 2 (c) & 1.6(c) of the CPA, for if .. is arrested for aO' offence he has to be charged and punished if found guilty 'aoordingly. The appellant thus hack no right to arrest then deny them bail and orderc-d them to pay the amount of money said to be stolen while unheard. More because there was 'no proof that the whole village council members were in custody of the money accrued from th sale of the village tractor simply because the village accountanthd absconded. It was his contation that the order of the trial court was thus just and if the DIvisional'Secretary ordered the arrest which was unlawful or illegally implemented then he should be held liable .. . . MALICKO as a 3rd party citing the case of MOIS ASSAWATAV,MATHIAS,(1980)TLR 158. As for the fact that the 1st, 51 %h and 6th alleged that the evidence in record shows that all six respondents were arrested and thus the order for compensation was fair and should be upheld. He priyed that the appeal be casmiesed with costs. Replying to this Mr. Luanda repeated that the arrest was jistif±ed as the appellant suspected the respondents for the offence of theft of the sale proceeds of a tractor and thus he legally did so u/s. 16(1) and that an order that the arrest was unlawful simply because the appellant was not a justice of i'' wrong praying t1jat the appeal be upheld. Now its not in dispute that the money from the sale proceeds had been Ctolen and that for vilibevr& gave an ordei the respondents were art'ested in order to hve the moncj recovorcd. It is also not in oaspute that the responients were ordered to pay Tsbs.52,000/= without being charged. In this appeal I axe called upon to decide again on whether the arrest was lawful or not and whether the said Order ' compensation was justified or not. Having gone through the lower courts proceedings, I have unfrtunatel not

S -3-- seen anywhere where a written order from the division secretary to arrest the 'espondents was produced. Be it as it may even if therewas such an order, the appellant was wrong in denying the respondent bail and asking them to pay Tshs6521 000/= to compensate the alleged stolen money before chargirthem of 4. offence of theft, What I am saying is that there .ou1d be a valid order from the division secretary to arrest all members of the village council but.the respondents were not fairly treated as they were punished without being heard by the appellant.. It is not in evidence that what he did is wat he was actually ordered to dr, more because it was known that the village accountant who was the custodian of the village money had absconded with the said money..I thus1J4d2€ that the arrest wa...unlawful as it did not comply with the provisions of S,16(1) and 14 of the cPA0 Nor was there a written order from the ciivision secretary calling for such an arrest and payment.-of the stolen money, Since I have held that the arrest Was unlawful then it goes without saying that the order for compensation was justified. The appellant should thus compensate the respondent and repay the said money of Tshs.52,000/= each which was not being disputed 6 As for the three respondents who are said not to be arrested by the appellant, I believe that issue of evaluating the evidence as to who was saying the most probable truth between the appellant and the respondent trial a chance which I was not accorded was at the court.I Thus have no reason to disturb its finding on this I uphold it ruling on this too. The appeal is hereby dismissed with cbsts, it is so ordered. S.A,Ns WiNURA PRINCIPAL RESIDT MAGISTRAE (E 26/9/2r'OO VIA

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