Ntumbo Mwita vs Makindi Makore & Another (Criminal Appeal No. 61 of 1984) [1988] TZHC 346 (5 August 1988)

IN ThE COURT OF APPIEWL OF TL1ZLNIL !.T M'J.NZA KI5LNGJ J. nc1 0. J.&.I cRn:IThT!.L !..PPE!.L NO. 61 OF 1984 NTUBOMTTP1.. • • • . . .LPP]LL!T Versus MLKIFTDI MKORE ) MWIT.. GRflTGL. )> • . . . . LRESPONDIiNTS (.ppeal from the decision of the High Court of Tanzania a4Mnza) (Munyera, J.) dated the 17th clay of February, 1984 in S Misc. Criminal Cause No, 25 of JUDi'TT OF THE COURT KISLIGL, J. This matter which is essentially of a civil nature, arOse from ciminal proceedings involving robbery with violence and en.ing up in a compensation order against the offender, and the oponing of execution proceedings to enforce that order. The respondent and one Jlwita Garinga, now deceased, brought the execution proceedings in the Distict Court s end the appellant lodged an objection, Tlae District Court 4ecid.ed the matter but an apal was preferred to the High Court whic save judent against the objector s hence the present appeal. The appeal to this Cou±'t has tacen a bug. time before it could be concluded because each time it came Up for hearing since Juie, 1986 one of the parties or his counsel was asCnt. During the .cureni sitting of the Court Mr. ICaji, the Deputy Regismr, in±'ormcd us that Mr. J. J. I'dwa -lop who had hitherto repreerted the appellant, was :suspo 1 dod from prao-tising. The appellant who bias unaware of this insisted on wanting to have óunsel but c..tatea 'tat he could no longer -.

afford ft i c'b for another counsel afte± having paid his money to Mr. Mwclo, Inorderto avoid further delay in the matter and in the intrest of justico, the Court directed that the appellant be assigned counsel at State expense and accordingly Mr. Butambala was assigned: 'tb represent the appellant. The matter involved in this appeal was fairly short. The compensation order in the criminal case was made against one Marwa Getanye, but upon an application by the respondent and the deceased Mwita Garinga, the District Court ordered tho execution of that order on the property of the appellant, following which some 38 hoad of cattle wore seized from the appellant and given to the rospondônt and the deceased Mwita Gringa. 1 1 1r0 Butnhalas complaint, in effect is that there was no justification whatsoever for directing such execution on the appellant's property. Both courts below, apparently felt justified to levy oxecuton on tho appellant's Property because they believed that Marwa Getanyo against whom the compensation order was made, is. 'the son of the 1appellant. flaether such belief was right or wrong is of little or no consequonce. But the point is that Marwa Get anye was shon to be an adult aged. 28 years, and the appellant was not a party to the proceedings loading to the making of the componsation ordor. Therefore, there was nothng to connect the appellant with the order for compensation0 La fat as we know, the position in a matter like this is that generally spoakixig execution could not be levied on the property of third parties who had nothing to do with the commission of the crime farming the basis of the compensation order. It is possible that both courts below, beiieiing that the appellant was the father of Marwa Getanye, proceeded on the basis of vicarious liability0 But that was wrong becso even if the.r belief was well founded, there iv no provision in our law, as

3 4 far as we are aware, wliiOh jnakp/ Vhthor vicariousr. J4able for the crimes of his grm ip children such as the afletd ion in this case who was shown to bo 18 years old. Such a sor iran an independeit person who s himself answerable fog )ds own crjmes. We ore therefore of the view that the execution of the compensation order was wongly levied oi the appellantts property. Pccordingly that order is sot aside, with a direction that the cattle which were seized from the appellant be returned tohim !s stated earlier, the record shows that the 38 head of cattle recovered from the appellant were given to the respondent and the deceased Mwita Garinga who was a co-respondent in this apeal On the óssumption that the appellant and the said Mwita Garinga divided the cattle equally between themselves, it is further diroctod that the respondent shall restore to the appellant 19 head of cattle only. Perhaps we should make a little note by way of pos -bscript. L..t the booring of this appeal the respondnt informed us that through the operation -,of what is locally Iown as "Baraza la Jadi 1 the appellant. has already recovered from the robbers the cattle which were stolen. from the respondent, so that the order of this Court now would make him recover the cattle twice. The appellant who was also present denied to have recovered any of his seized cattle, This Court and the said Baraza la Jadi are operating independently of each other, and there is no machinery co-ordinating the working of those two. On that account wo think that it would not be proper to make the order of this Court dependent on the 'operation and decision of the Baraza la Jadi to do so might load, to confusion. In the circumstancos therefore, all we can say is that No respondent should proceed to refund the cattle as directodby this Court, It is then open to him

I. V -4- to 1ring that information to the notice of the Baza la Jadi and ask that body to grant to him any remedy which it thinks is open to him, In the result this appeal is allowed. DATiD at MT2TZA this 5th day of .ügust, 1988.

• Q. M. IvLA.KAb1E) J1J3TICE OF APPEM (H. H. KISANGA) I JU MICE OF APPEPLIL • V (a. , M. A. o&pn) JUSTICE OF APPEAL I certify that this is a true cop,r of the oriint- 1. V V (S. DHPtYTY REGISTItA