Kidundo Mamboleo vs Leonard Nakambale (Dc High Court Civil Appeal No 31 of 1997) [1999] TZHC 400 (7 May 1999)

' .. c~ 6 IN THE HIGH COURT OF TANZANIA AT FJ3EYA DCo HIGH COURT CIVIL APPEAL NO, 31 OF 1997 (From Mbeya Resident Magistrate's Court Civil Case No. 82 of 1995 Before: S. Bongole - Tiesident Magistrate) KIDUNDG J ✓ 1AMBCLEO 0 ol O O O O O O O O. COO O O o· APPill..LA1'JT Versus LEONARD NAKAMBALE 0•00000000000000 RESPONDENT JUDGMENT This matter was rather involved. 'l'he appellant and the respondent were cattle 01rmers residing at Kamsamba :lard in Mbozi district. The appellant had a younger brother called Kuneya Mamboleo. Each had a separate homestead. On 2.4.95 the respondent's nine heads of cattle were stolen by unknown persons. The respondent reported the theft at Karnsamba police station and to their Hard Executive Officer (WEO), Casirn Abdallah (DW4). The nine heads of cattle and the thieves could not be traced despite extensive search for them. On 3.7.95 the thieves struck once more. Two heads of cattl~ (cows) belonging to the respondent were stolen. that same day, however, some sungusungu vigilantes led by their commander 1 Severine Ngombazi (DW3), found the younger brother of the appellant, Kuneya Mamboleo, in possession of the two cows in the bush and arrested him. Kuneya mentioned Clemence Santui and Norbart Marekani as his confederates in the theft of the two cows. The two cows and the throe suspects were taken to the office of the W.EO (DW4) who sent a report of the arrest to Kamsamba police station. That same day (3o7e95) the police station OCS, D/Sgt Venance (DW6), sent PC Mayunga (DW5) and PC Edgar to bring the three suspects and the two cows to the Police s+,,tin11 - A-t.. thP. police station the respondent identified the two cows which were handed over to him. Also at the police station, Kuneya, on being questioned, admitted in the presence of DW6, DW5, DW4, DW3 and the respondent to have stolen. the nine heads of cattle of the respondent. He explained that he sold the cattle at Mjere area and bought other cattle•. which he sent to the house of his brother, . •j • 0 ••• 0". 0 /2 •. "I• ; . ;t;. 1 •,~ ., .

(. C ;:, th8 appslla."lt ·: fo::-· safe custody,, Cm the basfa ,JJ:" ,, 8.JJ.d. acting on~ wh +. h.u.n-3ya .sai..o. -c.ilt• GC.3 (DW6) se:c.t some ,'Jf the appeE.ant by the WEO (DW4) c 1 rhey 1 ), 1 .n.d the a}?fellant at hwe as WE:ll as .i:1.is wi:t.'e, Reh:,;rna Hanga PW2) 1 and hie son, Fwhua Kiciu.rJ.do (?1,1'3) o '::hf,y "br:-ou.ght t 1e appella.1t to the pollce station. At thP. --.0'-L-c station ti:..-2 appella..,1, ,,,CJ,s t. ld in the p:.esence of K,meya viha.t Ku:'lya had said ,. nd. clfradqd by th,=., p::-L.i.cemrr. ,·. The "Jer::: ~ on of the appellant 1.1~,we-: -:c: U:y ''ir..-7>95 the appellant had not taken the cattle i:;c ·tt;,, po::.ice .staLon. ci the ;EJ.y1;i ·Tl.a11t with direction to bring to the pc-lice statt in , 11 h:i.s }1eads o;. L'.entification by Kuneya,, Again the p0.Licemen wei,A accompanied by, 21J,.:.'!g ,. her pe:rsons 1 t2'1e WEO (DW--). They did not fina. the ayi 1 ,.,lldllt at home., t lne,,:t.er& and eccaped to f;asan ·inta villageQ Howwer his wife .: V2) and son vi3) 1;,ere p::ceset1t. They vvere .J.Sked where the cat-cle ,,:Jere,; Gome "i heads of '""" WE:·7'a foμnci there. /th<"-:-.s· .:ere found at the hous1' of the appe.L' ant ci . - c ..1~)leE1 or i-)".i, l, ·- -~ -· anr F3) j 1 support of their clai:nso But the Hed.ical f .,ssj.st.a::1t at l\arnsambo. clisps .. ~;"tt·y who had attended them, Ant'1ony Thomas (D 1 d7), ... :,,; net i'uun,. them to have • •

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• 3 - l.l.Ot assault or beat PW2 and PW3o Quite rightly, in my view, the trial court, in consequence, found the credibility of PW2 and·PW3 en the allegation df assault questionable; and rejected the allegationo. The appellant, he said, heard about t~.~ .. seizure of his cattle and went to the polic_e ,jtation the following day (13o7o95) to pursue the matter, There were several..,prs_ons at the police stationo T'.ney included Kuneya and. the other two suspepts Clemence and Norbart; the father of cimence, Fungamal:i. Baharia (DW2); the father of Norbart; the respondent (DW1); the.Sungusungu Commander (DW3); .he WEO (rn-14); PC Mayunga (DW5); atld the OCS ·(mJ6). 'l'hen the appellant, for KunGya''l ·and the fathers of the two other suspects pleaded with the respondent, their fellow pastoralist, for reconciliation.; They wanted the matter amicably settled., They did not want their brother and sons in troubleo An agreement was :.c-ea.chedo The appellant agreed to pay the respndent nine heads of cattle which his brother,.--Kuneya had stolen and costs of shs.200,000/= the respondent had t11cur:r-ed, :n form of- transport, accommodation and· food in search for the cattle .. T'he father of Clemence (Dil2) agreed to pay the respondent two heads of cattle and slIBo20,000/:::; costs., The father of Norbart · made same agreement as DW2o The agreement for the appellant to pay the nine heads e,f cattle was recorded at the :police station. I shall hereafter call it ,t!1_e __ ~~~-elllP..!.o It was ,~exture 4, to the Written Statement of Defence •. It was signed by the appellant, the respondent and PC Mayunga (DW5) as witnesso Out of the respondent's heads "f cattle at the police station, nine were handed over to the respondent. - Th.e rest were handed over to the appellant who then walked away with Kuneya. _.. . The respondent and his witnesses who were present at the police station (DW2 1 :.s1;13; DW4, DW5 and DW6) told the trial court tl1at the agreement was voluntary and that it was the appellant who selected the nine heads of cattle and handed then1 over to the respondent. 'rhe appellant, they <s8id, was neither Fsult8d by the police nor forced to sign the agreemento The appellant, on i),::: other hand, claimed that he was not only wrongfully confined at the police st2b.on but ·c).1at he was assaulted by the police and forced to sign the agreement. Hence the suit which was for: o • o •• o , o • • /lt

1., ·. :Payment : of shs o 720, oooi:.: being the value of the nine heads of t'?:•-l -: , cattle sei'zed from him; 2., Payment of shs.2,000,000/= general damages for wr•ngful confinement, loss 6f liability_, mental and physical pain.- 3. Interest and costs. 4o Any other relief the trial court deemed fit and just to grant. The respondent in his Written Statement of Defence CounterClaimed for the costs of shso200,000/= he had allegedly incurred in search fer his stolen nine heads of cattle v1hich remained unpaid by the appellant as agreed- The trial court dismissed the suit as well as the counter-claim, and the appellant, feeling aggrieved, preferred this appeal thr~~gh the ~ervices of .his learned advocate, :Mr. Mbise, who had also represented hi"m at the trial., 'l'he respondent was unrepresented by learned counsel at the trial, but in th:J,S appeal he is represented by,.Mr. Mkumbe, learned advocate. Jrir. Mbise preferred five grounds of appeal which he argued generally.· The five grounds were:

1. The learned trial neeident Magistrate errBd in his evaluation of evidence before him otherwise he was supposed to-enter "' . judgment for the plaintiff (now appellant).
2. The learned trial Resident r-iagistrate erred on holding that the appellant freely handed ever 9 head.f"f cattle to the respondent.
3. The learned trial Resident Ha.gistra.te erred on holding that the appellant was not arrested and detained at Kamsamba Police Station from 3o? .. 95 to 13.7.95 when that was sufficiently proved by evidence on record-& 4o The trial court er_;red both on ·points of law and fact on ordering 9 head of cattle to be h~ded ?Ver to the respondent when all evidence clearly show the same belong to the appellant and there is no reason why they should.not be returned to him.
4. ·The learned trial Resident Magistrate erred on failure to consider the plaintiff's ,case ·arid submissions made instead he wrote a lop-sided judgment inGlined in fa'lour of the respondent. ooo•ooo /5

-j" 5 I wo_uld begin by i=;;aying that the claim .of shs.2,000,000/;. general daniages for wrongful_ confineme_nt, loss of liability ,·mental and physical pain was clearly a misonceptfono In the circumstances of this case that 9ould not .,~~· ,.. . stand against' the resp(?p.de:nt. The trial court· was of the same view.. ·£he· responet had nei,ther confined nor assaulted :the arellant~ He did not mention the_ ?-ppellant to the police. As rightly submitted by Mr. Mkumbe and conceded by Mr. fuise it was Kuneya, the younger brother of .the appellant, and not the respondent, who had brought the appellant into the matter. The respondent had merely reported to the police the theft of his cattle, and the police then took action as felt appropriate. ;It was a fact that the respondent O s cattle had been stolen, and so his report to the police was true. The respondent, therefore, was perfectly entitled to mak the report of the theft of his cattle to the police. The claim of shs2,000,000/= general damages against the respondent was thus•a misconception in the circU1nstances of this case, and it ought to have been rejected by the trial court on that ground alone. . I .• olll ' r f' The trial court, however, went a.head and found that neither confinement nor assault of the appellant by the police was established. That finding could not be faulted. The appellant coutd not have gone to the police station on 13o7o95 in pursuit of his seized heads of cattle, as he said,. in the event that he was in the police station lock--up. Besides 1 there was the evidence of the respondent and .his four witnesses ( DW3, DW4, DW5 and DW6) .that the appellant was not confined at the police stationo I am satisfied that that evidence •was properly considered and acted on by the trial courtG On the allegation of assault, the respondent al'J.d his five witnesses•,(DW2, DW3, DW4, m15 and DW6), as already explained, denied that the appellant was at any stage assaulted by the police. There was no evidence, or indication in the evidene, as to the reason for these witnesses, in particular D\J2 and DW4, to have concopted an untrue story. In support of his allegation nf assault the appellant produced before the trial court an outpatient treatment card (Ext P1)0 But as rightly held by ~he trial court the card (Ext P1) was clearly _fictitiouso It did not indicate the hospital or dispensary of the purported treatment. It bore neither oc,,0000000 /6

6 ~ Seal nor a.Sta.mpo .And worse, it indicated that.the appellant reported fer 1.:ester~,;z, that is on 15,,-7.95, and sustained severe injuries, while it' was establ:i,.shed and conceded even by. the appellant that he could not have been· assaulted by the police on 15o7o95~ 'l'he assault, if any, could not therefore have been the work of the police. It was, as reported by the appellant, the work of 5?-.eE~~~e...<?..F..le he did not mention or identify. I thus uphold the trial court's finding that neither confinement nor a.ssault of the appellant by the l)olice was established. eithero Much argunient centred on the question whether or not the agreement WaJ3 voluntary. A proper analysis of the totality of the evidence on record would establish on the balance of probabilities that the agreement was voluntarily and freely executed. The appellant, as already held, was neither assaulted nor threatened. The··affair including the handing over of the 9 heads of cattle to the respondent was carried out in the open and witne.sFed by many people. The respondent and his ·five witnesses said it was the appellant whcY selected the cattle and handed them over. to the respondent. The trial court rightly found that evidence credible. What the appellant did wo.s a gesture that-the agreement was voluntarily executed. Clearly, the a.ppellant was interested in the release of Kuneya., .He did not deny that he walked away from the police station with Kuneya after the handing over of the cattle. It would appear that the appellant was also a suspect in the theft of the respondent's cattle on account of what handled Kuneya had saido He had awkwardly · his cattle before the police went for , them. He was therefore.,interested in clearing himself as well~ The agreement as it read was: HATI YA VJU<:i\BIDHIANO. Mimi KIDUNDO S/0 I-1Afvlf3OLEO ambaye nilikuwa nikikabiliwa na kesi ya wizi wa mifugo KSA/IR/160/95 inayohusu. Nimearnua kumlipa mlalamikaji wa kesi hiyo ng 1 ombe TISA 9 ambazo ni mali yangu, kutokana na kuwa rnwizi wa ng 1 ombe hizo ni ndugu yangu, hivyo nimeamua kulipa ng 1 ombe tisa kwa hiari yangu bila.kulazllnishwa na mtu yeyoteo Rangi wa 0000000 /7

. - 7 - ng'ombe hao tisa ni kama ifuatavyo.. Ng 1 ombe saba ni nyeusi, na katika hizo saba ng 1 ombe nne ni majike.. Ng'ombe mbili ni madoa madoa meku...du na nyeupe zote dume. '.I'arehe 13/7/95 .. 1 .. Sahihi ya mtoaji Ng 1 ombe X 2. Sahihi ya mlipwaji X 3., Shahidi: Mayunga S.J o;i Mr., Mbise submitted that the agreement, even if voluntarity executed, was illegal in that. it offended the provisions of section 111 of the Penal Code. In the circumstances of this case, however, I would uphold fx., M.kumbe 1 s submission that the question of compounding a felony did not ariseo The agreement was between the appellant and the respondent .. The police were only a witness to it .. It was not the decision of the police that the appellant pay9 heads of cattle to the respondent o 'l'he police were not empowered to do so, for there is a pledge in the Constitution that civil rights and interests of every person are to be protected and determined by the courts of law (Article 29(2) )., The respondent's cattle were seized by the police and taken to the police station for identification by Kuneya, and not for handing them over to the respondent .. But then the agreement intervened .. There was no provision in the agreement that Kuneya would not be prosecuted.. 'I'here was therefore nothing which prevented the police from taldng legal steps at any time, then and. now, against all the suspects in the theft in the event the police were, and are, thus inclinedo With respect to Ivir o Mbise, the agreement was not a compounding of a. felony within the meaning of section 111 of the Penal Code. What mattered in the circwnstances of this case was that the appellant voluntarily and willingly agreed in \vl:'iting to part with his nine heads of cattle on account of his younger brother, I(uneya, to make good the damage caused to the respondent by the theft of his heads of cattle. In the event, I find no merit in this appeal which is, in consequence,.,--._ hereby d:Lmissed with costs here and in the y_m.u-t_ below. AT MBEYA. 7 May 1999. For Appellant; For Respondent~ Mr .. Mbiseo I'--jr ~ fl1k.w:J1b e o , .. ii , i /?~ ~~ (- .. ::.qi: .. ,. ,,..--:::-.----- .......... --B. P. 11omrr- JDroE. .,

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