Mbada Kihiri vs Boniface Mkeka (High Court Civil Appeal No. 19 of 1980) [1980] TZHC 444 (29 November 1980)

: • ; ·.· . IN THE IG qoqRT ◊F-r.J\l?lIA ''.;··'.:. . .:..· .. · . AT Mt1SOW1A . • i:•_ ···~ ·. .... / ·;'J.: :~~~.t:~~: .. ;--: ·,, . . '_ :; • ;: __ · .~ A:PE¥A':rE :JURt~pldTIOi;J

• ... v ~~ .. ' .· ---r,. . ··; HIGH COURT CIVIL AP:l?EAL NO!; 19.QF 1900. ... _(From tlle, deciion of the Di.stric.t Cou;t of Mus'oma.,-·at .soma in .Civil Appeal Noc 20 of 1Vl9 ''" Before & 1f" M, Nirah.isl;.a; Esq~, · · · Resident M.a.gistra te) · "' BONIFACE MKEKA VERSUS ! i It::::: g: S g t: i : : ft·:: : : : : & ; : : : : IS I::: r:I.. RESPONDENT MFALIIA, J.: In the Resident. }sbgi,st:rate I s Court at _.Mu.soma the respondent BOJ.il'IF.a.CE MKEK.A sued the ap-p·ellant MB.ADA KIHILf ola:Lili..11.g dama,O'es for the loss ot' his 12 heads o:f: cattle and miJ.Jc.sales vorth phs.- 0 5,586/= over a period of 28 months ·· ' ·: ' He told. the trial Qourt that on 1/4/76 at Kalvva cattle market, X.w;imba District in Mwanza Region, as_he·was selling his cattle the appell,ant appeared ana. purported to i,dentify ._on·e head of cattle among hi$ herd of 10 hea(S of cattle'> · :[mrae.cl.i:tely h·Ei. had him arrested and the 10 heads of ca·ttle con;fiscated · He \vas kept in the Police lock up at Ngudu a.waiting transportation.back"to his home District Bunda in.Mara Region~ As he was-•held at Ng\idu Police Statior the. appellant drove. the seized attle-,to Bunda District ,and kept them at, Nye.:::"·:.__ ..... :.:_---"···-- '00:ttle·. Po.und1 .. After -cimetime, :Police from Bunda District arrived w-ho esco.rted him back to ·Bunda where , he was held. at the Police Station •.. He add.ed that on 18/4/76 while he was being held at Bunda Police Statto,n _the. appellnt led another l?olice Party to his hdme where a furtl:+er 17 heads .. of· cattle were seized and qriven a.way and were kept at_llilld.rira Gqvernment Cattle Pound~ He was later charged with cattle -theft and,:.on 23/8/78 he was acquitted, it wlis theh that he W.E;lllt to cla:i.tn and collect his seized cat_tle from the Cattle Pounds; At the first pound he collected only 3 heads· of cattle,'· 7 had died;. and at the second pouild· he _colle¢ted orily •13 cattle, 4 .lla.d, died~ .He therefore lost in the ,process a to,tal of J:l .. heads of-· 01?. tt:j.e · (p.e mistakenly claimed

12. l --It was in respe~+ •::f the· lo'ss,;c0f .these heads .of cattle that he was olaim.:in.o- ·-:1~,,,,~~s, aga:inst· the, appeRJ;ant sf3,ying that as they were unjus:tifiab.ly seiz(;lcl.at the instanc,"l.:,:of;tp.e:allpellant, he must be liable for the::..r · :l.o,sst) .-. · · · · . ;.!,:,·::· .. With regard to t:'le-Joss on nliJJc sale, tll~. respondent stated that before the seiz1.1.re of :::Ls cettle he }Has ea.ming a total of Shs .• 199/50 per month~: h.1.rio2: <:he.cattle ,reinafued und'er seizure :for· 28 months, he clai.med tL~~, loss in. saJ,es :t;or tpe who1e of this perio(i at Shs'? _ 199/50 · a month;>.- ; ·· ,--,.._: ... The appellant I s deferi'ce was .a total denial. Q;f any J.,;iabili ty; With regard to the_sei'. ;...re :of the. first 10 heads of ,ca-frtle from the reSPOYl. 11 "':: .,,, ,-,.:-,:,:, J..",r-1,. ()YI Q.r:.h.hr::. :.1.-e had his cattle stolen , and)1e repo;r-:ted tne theft a~ the .'.Police Stat_iqn :Bunda where he was issued with a permit ·to look;·•for his ca.ttleli Then he received inform.a tion that sci'ie. stolen cattle -had been<taken across to Ngudu·; . '·. ' ... , '

t .. 2 With two other people he set out for J:Jgudu in search. of their stolen cattle. He added that at Kungtimalwq, they found police had seized a number of cattle suspected to have been stolen~ These were 23 head$ pf. c:;i. ttle ana. amonc; the seven people detained in connection with these cattle was the respondent~. With regard to the 17 heads o:E' Cattle se_ized from the resporideni. 1 s .holll;e-, he told the trial 0ou_rt that he was asked by Police from the. ReGi0hal Headquarters· fo · le<,d and show them the· hoin.e of the respondent in his_cap2.c;Lty as' the V:Ulac;e' Secretary; He said. tl).a t he hao. to do as requested and le'd "'che-· J?olice to the respondeti:t. 1 :e, l1pmestead where they seized 17 heads of cattle purely for-investic;rtion,: afuo.n[; :theq,e there vrere no cattle belQJ.1Gi:ne; to him. He added that he did 11:ot ·f.fSsist the Police in driving:tJ:ie:ca.ttl? •. He emphasized that it vms.•the Police who seized the respondent 1 s'ca.ttle:and_la-t;er charged him with riattle theft; · At the end of the trial in the lower oourt, the Resident Magistrate held_ that the appellant 1 s report to.the :Police and seizure of the respondent's cattle.was false and unreasonable and _found him liable in damages for the loss of both the dead cattle ·and the milk sales which he reduced to .Shs.,2772/=; ' .......... -. . .. . Agaμist this decision the appellant appealed arguing that the trial Magistratee erred in so holding.against him because there was no evidence to show that he made any report e.gainst the respondt to the Police and that if there was such a report it was flse and malicious; In the fourth ground of the memorandum of appeal he denied leading the Police Party to the respondent's homestead where 17 heads of cattle were seized, but at the hearint; of this appeol.through his Counsel.he admitted leadinQ the Police Party to the respondent's home but he said that he did so in his capacity as a Village Secrea,'ry not as a ·oomplainan~~ · I wiil start with the seizure of. the 10':1;eads of cattle at Xungumalwa, .Cat tlc Market• The. respondent I s version wo.s that the appellant.appeared and identified one of hfs_lO heads of cattle to Be one of the ·12 heads of cattle v1hich. ho.d been s-Jiolen from him~ He seized the whole herd which he .<lrove back to Bunda leavin,cr him.in :Police custody at :Ngudu~ · The respondent's case as I understood it then was tho.t the -·appellant/ s seizure of his whole· . ~~- . .· ~ herd was um·eo.sonnble bec.:1use he· had idJ?:ti:fied only one of them His actions unjustifiably i.lilperilled the ·safety of his cattle .• In the trial Court. the appellant de:nied seizing any cattle belonging to the respondent~ He ooid that on arrival at Kungumalwa Cattle Market, he f'oundr,the respondent among others had·.·b·een arrested along witl1 a numbe_r of their cattle, that these arrests a1id seizures had been carri:.d out by Police at the market. In short then he li-ad nothin:S to _do with the arrest of the respondent and the seizure of his cattle I find this version hard to accept,, Police do not just arrest people and seize their property~ They must have grounds for so acting; In this particular case the respondent's version that he was arrested and his cattle confiscated when the appellant identified one oow in his herd to be one of his stolen cattle-, appears more acc83'ttfhle and reasonable" The appellai1t then drove the whole herd back to theirhome.District at Bunda. leaving him behind in Police custody at Ngudu. Indeed the appellant hirii.self does not appear to have been certain of his version in the · . .rial Court, for he did not even attempt to complete hL, story namely what happened .af.ter firding the res·pondent and others under arrest at Ku:oguinalwa and their cattle seized. Hov1eve:i:- at the hearing of this appeal.he admitted throuGh hir/Counsel thnt he had indeed

1}' ,- '";· ,J;, .. ,,. · . J .. :·-... ·•.' '. • ·-; . a::•flt~- #.- fl~_fc - /·· ···'.1 3 ' -r; L::t,./'.tifL.xl .qne fief~~ in'·th, rcspon:'t:mt's,)}0rd to b ... -his-, bu-l: h~ stopp.cd .short of ·say,iJig what_ hctp_p6"n0d1'.n0X-t - nomrdy .thnt 1 ho ·dovo the whole of the rcspo!J.dont • s herd bac)c to Bur . .1 1vl1crc: • h•l held the cattle if!loundd nt the Govornm(.nt Poundo 1,ho qu~,stion then is was: this seizure of th8. wholr; herct ·j-u;;tif~~(1'i: I ,'.o not think there.,woul_d h,·wc been 2.11y· contover.sy if· th .. , . ::ipp,,llant had contendqd l'limself with s.;..::iz:tng the; rie hcifcl hi hnd identified; al though even. this was proy(..)d -ron iri ·.th0, . ., Crimin/}1 trial for thctrespundcnt prOVlJd that he. had bowjht it bonc1 f:i.,cie ;· bl:Ci1Use it would hayi/ b0en 00.::3y. f(2r him to . cs t:;blish a good though mistaken mdtivr_;. But for him 'tb take the whoL, hard· when he knew the rest of the _catt-;l.<;::·,c1.id not' belong to him, could only have--had one purpose, namely' to indemt1,ify himself or to guarantee··'h:ls own c:cmpensation after t.h · conclusion of th<:.! Criminnl'trialc\g•ninst the r_tspondento: 'This he was not entitled to do - at least without a Court ordero When therefore som<-' of these cattle~ in nmber) latr ·did- and the respondent was acquitte:d in tp.e Criminal, tri .. nl, ;th-::ir C?riginal seizure by 1:hc.: app,,llant haviri'g .'been unlawful, the o.)p,.:llurit becnmo li:1blc :for their loss. ·i-towever as the npp81L,nt•·s eizure· of the one: cc1ttlo which he identified was justified, h2 cannot be liable for its J.osp, hence' h.ts liability is only in relation to 6 heads of catth out of the seii'n. ··: _; . . I wlll now turn to the liubility for the seizure; of the 17 ht=o.ds of' cattle at the respondent• s · ·homestead. Th ui_Jl):11:J'lt• s pos.i tion has been that he only ltd the Police Party to show th,m the hom--::stead of th, responden·t in his. ci'ipai:ity as the! Villo.g•...: Secretnry, and that aart from-this limit2d role he took no parf,in the seizure and drivinq of the cattleo He added thnt throughout the proceedings he remain6d in• the vehicleo . The respondent's sister M1,.fUli. MKEK;-,. (PFF.No.2) ho.d 2 diff:.'!rent story~ She told the trial Court thnt on 18/4/76 a Sunday at about 6 a.m., the appellunt arrived at her hom8 accomr,0.nicd by a Party of Eoliccmen who informed her th3t thciy had come to tab.i- some cattle. She c::dded that at the time her brthe'r _the' respondent was aw,ay in Police• lock 'Up at Buncta. Thereupon •she saw the appellant whom she knew enter th 1 co.:t:tlc pen G.nd ·drive out 17 heads of cattle::o Having done so one of the Polic0men entered the cattle in his note book which he clSk,"d 'her to sign. • T};lis she, did .s well as the cell leader and tho appellant• e ".iii.;i.-PeI'Lnt ft)a one Policem,:m drove the crnttlc ,to Nyamuswa while •'the othrs drov(:? a~·a,.in the vehicle. If this version is accepted then \the apelll'nt was ,again an acti vc pnrticipant in the seizure of .the responddnt's catle,, The. respqndent difputecl:.the. nppellnt' s allegation thut he went to his homestead with the.Poli~~-' Party as a Villug0 Secretnry.;' He said that the appel.lant could not have- com8 to his homes1:ad ns a Village Secreto.ry bec:;::i.use they'liv8 in different· Villc:\1es. He lived in .:3alamn Kati VilL1ge which "h::xl its oh scrctqry and the appellant was the Sebretary of his own Virlage Salama A. As this point was not properly urgu0d n,1.d decided in the trial Court,;:;:: ordered evidence on this poL1t to be led by both sides. The Chnirmnn of Salama Kati Villa9c Mr. Joseph Mboyi gave .evidence to· the effect'that ih 1976 ett the tim..<; "2-f these incidents the respondent liveq. in Sal:1m" K.:1ti Village whose Secretary wa,.one Daudi Kerenge, while the:.: . appellant was Sretnry of 3alnmn A Vil+age · where he li v .,d. The ·s0.mc. thing was s 9 id by t_pe app(::llc1nt' s own witness FEK,\ MWII<WA'1;3I that the appellant, wa.s .. Secretary of Salama A Vill~ge not S:ildma Kati where the·respondcnt•s cattle were seized. The • ....... - . .... ~.~~~~ ;-~~~·. ... ,; &u/'1. * ➔

\ 4 Ch2irman of Salama Kati Village added that no official of 3alamu A could perfl'irm officiul duties in· Salama Kati buUS(: th,.: lntter Village has its own officie1ls, Chairman, Secreti:iry • e1nd nll. Inder.::d on the duy in question ·whGn a police ;_:>arty arrived in the Village with the nDp2llnnt, they reportc>d to him in nis co.pci ty a~ Viil;:ige Chairm.:m o.nd it was he who 12d them' to the respondent·~ homestead. . " f This evidence is clear. When the Polic,2. Purty which included thc app(=llartt arrived. -:it ·sn1omc1 K:1ti Villag,;, th,y ' reported to the Village Chuirman and .asked him to l•-ad them to tr:ie respondent I s homestead., I.t is th'-'r,fore not tru,.; th:::t ·the appellant accompanied the Polic Pc1rty in his Cn\Jtlci ty ns a 'VillQge Secretary. He had no officic1l functions to perform in Salama Ki'lti Villageo He wns not the Secretary of tlnt Village, and the act of leadinq to nod showinr, thG res::,onc1c,1t' s home was performed by .the Village Chnirmano In these circumstnnces the uppellant could only have gonG to .--.Salarri.:1 Kati and t;,ikcn. pnrt in thG seizure of the respondent's cattle in his private co.po.city. What interest then had he in .the seizure of the respondent's cattle? If as he ·says there was a general police round up, then the respondent could only hnve. bGen inc;ludcd ut the .inst:1:,ce of the appellant who .. at that time r.;garded the respondent ' .. . . . . / ' . as a cattle thief, or elae hc,enlisted Police assistance in seizing more of.the respondent's cattle while the Criminul case · ngni11st him was yet to be determined. Indeed the appella:,t' s .direct interest in this.seizure was demonstrated by his personcilly driving the ·catt.J.e awny. It· is not true as h,., t1lle9es that he remained passive throughot ih the police vehicl6. If this is so, then his trip to Salnma Kati and his pres(mcc c1t the respondent's homestead was supcrfluo1,1s. For these reasons I agree with thL trial Court thc'.:lt the appellant was directly involved in the s0izure of th(~ 17 hcuds of r,;a'i:tle at the respondent's hom<:?stead, nnd as· I have trid to show, the sei'zure of these anim9ls. WclS unlcJwful and .unjusti- fic:iblco He must therefore be L:1blc1 f;.;r th~~ subsequent loss of 4 of these heads · of cattie, •. t Lc1stly the loss of mil)c sales. I do not think 'this Hus established. The evidence wus tat, or.iather there wns no evid'ence showing that a·ny of. t_hese c1ttl:,. which were seized were a:t th time. with calvs so ti.t ·thelf were. 1oducing milk-o There is also no evidee •th'it nnyf'. th~~2 J.v wh:i:1r.e at th2 Government Pound. T,Ji_s had gf cL'lim should not have been allowed. The c.la:im for Shs. 586/= 0r nny lesser sum is accordingly dismissizd, and the order· of the trial Court allmving the sum of Shs .•• 277'2./= is se:t .a~ide. .The triai Court's . ., • judg+emc.mt allowing damagJ's · for ·the loss".-.,f 11 heads of cattlo is;. also vc:iried to read id heads ;f cnttle for the reasons W,hicfy, :;::i:,. have· "C_Ji v:eno ':"11t; and apart from.he aove variations, is dismissed with c6sts. -, . ·,· .