Kidundo Maboleo vs Leonard Nakambale (DC HC Civil Appeal No. 31 of 1997) [1999] TZHC 483 (7 May 1999)

IN:I'HE HIGH COURT OF TANZANIA AT HBEYA DCo HIGH COURT CIVIL APPEAL NOo 31 OF 1997 I (From Mbeya Resident Magistrate's Court Civil Case Noo 82 of 1995 Before: So Bongole · - Resident Magistrate) KIDUNDG MAHBOLEO •• o o •• o o • o •• o •• o o · APPL'LLAi."ifT LEONARD NAKAMBALE Versus l ' .o•occiooooooooooo JUDGMENT RESPONDENT .. : ' -~ ;_-:·-!::' :· ' . :. This matter was rather involved. ,The appellant and the resppndent were cattle owners residing at Kamsamba Ward in Mbozi district. The· appellt had ,•:. a younger brother called Kuneya Mamboleoo Each had a separat omestead. On 2.4.95 the respondent's nine heads of cattle wer stolen by unknown persons. The respondent reported the theft at Kamsamba police station and to their Viard Exe cu ti ve Officer (WEO) , Cas:i.m Abdallah (DW4). The nirie heads of cattle and the thieves could not be traced despite extensive search for themo On 3.7.95 the thieves struck once more. Two heads of cattl~ (cows) belonging to the respondent were stoleno that same day, however, some sungusungu vigilantes led by their commander, Severine Ngombazi (DW3), found the younger brothe:>,"'.··of· the . . . appellant, Kuneya Mamboleo, in possession of the two cows· in the bus~:and_.arrested - r • • • him. Kuneya mentioned Clemence Santuiiand Norbart Marekani as h;s· confederates in the theft of the two cows. The two cows and the throe -suspects ·viere/;taken to the , . office of the WEO (DW4) who sent a report of the arrest ._to. Karmfa.rnba police station. That same day (3o7•95) the police station OCS, D/Sgt vJ'ria,nce (fa.i), sent PC Mayunga (DW5) and PC Edgar to bring the three suspects and the two. c·ows to the Police At. thi:> nnl .i.M station the repondent 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 respondet :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 h~s brother, ·:-. ·• e •••a••• /2

::, G:·1 the basi.s of~ end r.c-cing on~ wh.,-1- Kunera sai.d ch OGS (DW6) sei;.t .son 1 e f~)1ioemen, D\J.'.5 among them 1 tu a.rr;..:-:;t the :ppella.ntn 'I'hey W8l:·,c:, led to the b,1Use of th.8 appel1a.r;.t by the {ED (DW4)~ '.rhey t,iund the aj:,i;ellant a.t hor'.l.e ai:-: viell. a.s :.is li:e,. :Reh.::rta Hanga {PW2) 1 ·and hi,, son, fwhu.a Kidundo (.f:-\ii3)o 'foey kought t. 'Ld. in the :prf.:serwe i Ku::1eya v,hat Kun..Jyc nad said ::mi d.i.r.'-::.-t-Rd by tile po.; 1.cemuL (ml:.; .md D':J6) to t.ai-ce to the police station the heads if .::attle K-..rneya had k,.·-p 1 .~ 'l';:lif . 11:i:-s 01: . L;.,:,-: 9.'5. and in the presence of I among other :i;,, i:-sons ~ th·, responderit , E:y •ir'.,7,:-9_5 thE: appellant had not taken t)::.e cattle tc t.t,(: pc.,J.ice statior~ Orj tbR. ct,,y tl1s !JCS (DW6) again sent the policemen, aiTiong ther,1 DW5 1 to the }.:.,_)'J.2t, ( J. the >ff)}', ;JJ .. ant. with direction to bring to the pv lice stati·,n • 11 his heads of cat ;"L,, ·''.: Li.entification by Kuneya,, Again the pclicernen we1:"' a, corr.pcu1:i.ed byv .. .. 'l'G"O (D 1 ''·.' arr.· .1g :: her per sops i tne w.l!J .~ ·.) , They did not find the ap:r "'lldilt· at home .. Li:.· h2..c~, '3.ccording to D\v4, DW5, DW6 and the respondent, tra."lSferLi hi: cattle ' t"}d&\vriere and escaped. r.o Nascinta villageo However his vrif e ( \I?, and son \ . ' t.:t:-1e ,:1s ·.:·ere found. a.t the l10U.St- 1 of the appe.1.: an:: 9 sist, , Ne.hi-n,:.,~\ ;. , · 1 tl1ese he1.,d.s of cattle were seized r.d taken to the :;?oli;:e c-..,')ies of :E--'1"3 U•;r.t'P2 anr: P3; i.1 support of their claims .. But the .Medical n. 1nied the authent:'sd: y Gf .·

3 ... .2ot assault or beat PW2 and PW3o Quite rightly, in my view1 the trial court, in consequence, found the credibility_of PW2 and PW3 6n.the allegation of assault . . ~ .. . questionable, and rejected the allegationo.. . -The'~~pellant·, .he said, 'heard about the seizure of his cattle and went to <J . the police station the following day (13.7.95) to pursue the matter. There were several persons at the police static~. I They included Kuneya and the other two .. .-.. . . . . .. I suspects Clemence and Norbart; the father of .. . . . . . I . . the father of Norbart; the respondent (DW1); I '., Clemence, FungamaJ.i Baharia (DW2); the Sungusungu Conir!1alider · (DW3) ; the <fiX) (D:J4); PC Mayunga (DW5); and the OCS (DW6). 'rhen the app~llant, for Kuneya 5 and the fathers of the two other suspects pleaded with the·rsspandent. their fellow pastoralist, for reconciliationo They wanted the matter amicably s 1 ettledo · They did ot want their brdther and sons in trouble>, An· agr.eement .. was I .... ·. reachedo The appellant agreed to pay the respondent nine· 'heads of cattle which his brothe Kuneya had stole; and costs of shs.200,009/= the respondent had incurred in form of tra.."'l.Sport, accommodation and food in search for the cattle., I • The- father of Clemence (Di'l2) agreed t,o pay the respondent. two heads of cattle and shso20,000/::: costs9 The father of Norbart made same agreement as DW2o The agreement for the appellant ··to pay · the nine heads ('If cattle was recorded at the It was Anhexture A .. .. ..:w- to the Written Statement of Dfenceo It was signed by the appellant.,· the . -:"· .' . respondent ari.d PC Mcyunga (DW5) -~ witnesso Out of the respondent's':· heads· f "'-"··. ·. ,, .. ' cattle at rest were the police station, nine were handed over to the respbndet. handed over to the appellanl who theh walked .away wi·:l ::i.rn.-e. I The I .·..,· ' The respondent and his wi tne&ses who were present at·: ;t-i~ :.paiice station (DW2, D-!3 1 DW4, DW5 and Dh'6) told the trial court that ·the a~.elnent was voluntary and that it was the appellant who selected the nine heads of cattle and I handed them over to the respondento The appellant, they sa.id, was neither I ..,sulted by the police nor forced to sign the agreemento The appellant, on the other hand, claimed station but that he was . . . that he-was not. only wrongfully confined. ?-:t•the police 1 . . .· ' assa~ted by _tre police and farced to sign h agreement. Hence the suit which was for: <:1 o a • • a.• o • o /4 • a

1o Payment of shsi.720,000/::.:: being the value of the n:i:,ne heads of cattle seized from him; 2. Payment of shs.2 1 000,000/= general damages for wr•ngful confinement; 1oss of liability, 1nental anci. physical pain. _. 3. Interest and costso 4. Any other relief the trial court deemed fit and just to grant. The respondent in his Written Statement.of Defence Counter~Claimed for the costs of shs·~~00,000/::.: he had allegedly incurred in search for his stolen nine heads of cattle ~ijich 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 through the services of his learned advocate, . Mr. Mbise, who·: tiad ·.,also represented him at the trialo '.I'he respondent was unrepresented bf learned counsel at the trial; but in this appeal he is represented by Mr. J ✓ ikumbe, lear.ned advocate. Mro Mbise preferred five grounds of appeal which he argued generally. The five grounds were:

1. The learned trial Resident Magistrate erred in his evaluation · of evidence before him otherwise he was supposed to enter judgment for the plaintiff (now appellant). _2o rrhe · 1earned trial Resident Magistrate erred on holding that

• .. \· the appellant freely handed over 9 head f'.'f cattle to the · :( l; respondent •. - . . 3/ }h:i~- learned trial Resident l'iagistrate erred on holding that :th~_appellant was not arrested and detained at Kamsamba Police -:Staii9:ri from 3o7•95 to 13.7.95 when that was sufficiently proved · ' by eviqence on record& 4o The trial court erred both on points of law and fact on ordering 9 head of cattle to be handed over 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 .. . • ·5. T'.ae learned trial Resident Magistrate erred on failure to consider the plaintiff 1 s case and submissions made instead ··he wrote a lop-sided judgment inclined in favour of the respondent. oooaooo /5

• 5 - ... , I would begin by saying that the claim of· shs. 2,000,000 /= general damages for wronfl confiement, loss of liability, mental ·and physical pain was clearly a miscpnceptiono Iri ·the circumtances o'f this case that could not stand against the respondent. The trial court ·was of the same view.. ·l'he respondent had neither confined nor assaulted the arjellanL He did not mention the appellant to the police. As rightly submitted. by Hr. Ml-rumbe and conceded by . . I . Mr. ·}fuise it was Kuneya, the you..-iger brother of the appellant, and not .. the I . . ... respondent, who hd rought the appellant into the matter. The -spo:ndent had merely repc5rted to the police the theft of his cattle, and the p61:ice then took action as felt appropriate. It was a fact that the respondent s cci.ttle had been ' . solen, and so his report to the polic was true. The resndent, therefore, .. . . was perfectly entitled to ·make the report of,, the theft of hi~_:cattle to the ' • . . . I . polic~,. The claim of shs.2 1 000,000/= ener damages against the respondent ' was tus ,_.a misconception in the circumstance:9 of this case, and it ought to have been rejected by the trial court on that grund alone. ' I The trial court , however , went ahead and.found that neither confinement I nor assault of the appellant by the plice was'established. · That finding could :/ . . . not be faultedo The appellant could 1 not have gone to the police station on 13e7e95 in pursuit of his seized heads of cattle, a.she said, in te event that he was in the police station lock-up4 j respondent and his four witnesses (W3, ' · .. Besides, there wa.s the evicl,erice of the ,-;=>t..:.,-- ·•···.:. Dw4· DW5 and DH6) thaf·th~{:appellant was not confined at the police station .. I am satisfied that tha:t evidence was properly· considered and acted on byi _the trial couito On the .. .μlegation of assault, the_ respondent and his fie witnesses (DU2, DU3, -I)i:}4, :rnv5 and DW6), I . . as already explained, denied that the appellant was at any stage, assaulted by I . --· the policeQ There was no evidence,!, or indication in the evidehve,. as to the . j reason for these witnesses, in particular rnJ2 and DW4, to have concocted an I untrue story. In support of his flegaio nf assault the appellant·produced I before the trial court an outpatient treatment card (Ext P1). But as rightly held by the trial court the card/(Ext P;) ,was clearly fictitious. :It did not j• indicate the hospital or dispensary of the purported treatment. It bore neither l> 0 ,Q u O O O • • /6 , ii

6 · a Seal nor a Stam]?• And worse,. it indicated that the appellant reported fdr treatment on 160 7.95 and reported· that h~~vms" assau3:t_ej. b;r_ce~!,in peoE.1.e ;yeter_d}l-,;r, that is on .15o7o95, and sustaned severe injuries; while it was established and conceded ·even by·the appellant that he could not have been assaulted by the police on 15. 7 .,95,. 'l'he assault, if any, could not therefore have been:- the wo:r;-k of the police. It was,• as reported by the appellant, the work of 2.~~:;'.~i.Il...E.e2.£le he did not mention or 'identify. .I thus uphold the trial court'sf.ib:ding that neither confinement nor assault of the appellant by the poli,ce was·. established eithero Much argument centred on the question whether or not the agreement was voluritar:f. A. proper analysis of· the totality of the evidence on record woud establish ~n 'tl1e balance of probabilities tha.t the agreement was voluntariiy and freely-"·.execued.. The appellant, as already held, was neither assaulted nor threatened. 'l'he iaffair including the ha..YJ.ding over of the 9 heads •f 'cat tie to the respondent was_,; carried out· in· the open and wi tnesr,ed by many· people. The respondent and his five witnesses said it was the- appllant who selected the cattle ax1d handed them over to the respondent.· The trial court rightly found that evidence credible. What the appellant did wa.s a gesture. that the agreement was voluntarily executed. Clearly, the appellant was interested in the release of KunE;ya({', He did not deny that he walked away from -the police· station with . : ·. ' -·· .... , Kuneya af-t¢/}:t;be handing over of, the cattle. It would appear that the appellant .:· ·,..; , ... . - was also a sμjfpect in the theft of the respondent I s cattle on account of what handled Kuneya had said{ .. He had awkwardly · · his cattle before the pol·ice went for theme He was therfore interested in clearing himself as welL The agreement as it read was : tTANZANIA :r'OLICE FORCE" · HATI YA jvlAKABI])HIANO. Mimi· KIDUNDO S/0 hAivffiOLEO ambaye niltlru.wa nikikabiliwa na kesi ya,. ·wizi wa mifugo KSA/IR/160/95 inayohusu. · Nimeamua kumlipa mlalamikaji wa kesi hiyo ng 1 ombe TISA 9 ambazo ni mali yangu, kutoka.YJ.a na kuwa mwizi wa ng'ombe hizo ni ndugu yangu, hivyo nirneamua kulipa ng 1 ombe tisa kwa hiari Ya.IlbTU. bila kulazimishwa na mtu yeyoteo Ran.gi wa -ooaqooo /7

• 7 - I ng 1 ombe hao tisa ni kama ifuatavyo .. - Ngtombe saba ni nyeusi 1 na katika hizo saba ng 1 ombe nne n1 majikeo Ng'ombe mbili ni madoa madoa mekundu na nyeupe zote dume. '.l'arehe 13/7 /95,,_ / 1 .. Sahihi ya mtoaj i :Ng I ombe X 2o Sahihi ya mlipwaji X a " Mro Mbise submitted 3., Shahidi: Mayunga S., J.; 1 that the agreement, !even if voluntari ty · ·e}fecuted, was illegal in that it offended the provisions of section 111 of the P.nal Cpde. In the circumstances of this case, however, I would uphold Mr., Mkuinbe 1 s submission . . .. that the question of compounding a felony did not ariseo The agreement• was between •• • 'Ito ~ • . : . .. :· . -· .. . .. - .. ~ .... . :. the appellant and the respondent. The police were only a witn~$s. ·to· it. It was .. not the decision of the police that the appellant pay 9 hd.s o'f .·_qttle to the . . ::; ··. . ~ : :· ~ respondent.. '.rhe police were not empowered to do so, for tre is a pledge in the Constitution that civil rights and interests of every per.son are to be protected and determined by the courts of law (Article 29(2) ) .. T}:i_e respondent's cattle were seized by the police and taken to the police station for _iqenification 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.. T"nere was therefore nothing which prevented the polie from taking ',.~ 'r ;i,/ \ • • legal steps at any time, then and now, against all the suspect.i?iri/the theft in :- .. > .. .... :./ .. the event the police were 1 and are, thus inclined. With resP~-1> ·to· Mr., Mbise, the agreement was not a compounding of a felony \vithin the ;me'.aning of section 111 I .. . · .. ::, . of the Penal Codeo What mattered in the circu.rnstances of· th:ti(case was that the ...... ~ . . appellant voluntarily and \11illingly agreed in \vriting to· ji·.t with his nine heads .. ··:, of cattle on account of his younger brother, Kuneya, to make good the damage caused to the respondent by the theft of his heads of cattle. In the event, I hereby diomissed with AT MBEYA .. 7 May 1999. For Appellant~ For Respondent: Viro Mbise .. r-±r., l"lkumbe .. JUOOE.