MARWA NGEGA v KIRIMAMASE AND OTHERS 1992 TLR 134 (CA)

 

MARWA NGEGA v KIRIMAMASE AND OTHERS 1992 TLR 134 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Omar JJA, Ramadhani JJA, Mapigano Ag JA

9 June 1992 B

Flynote

Peoples Militia Law - Sungusungu - Whether may order compensation - Peoples'

Militia Laws 1989.

-Headnote

The appellant was alleged to have stolen a village grinding machine. After his arrest

by C the sungusungu, he appeared before the Baraza la Jadi, a sungusungu organ,

where he was "found guilty" of stealing the machine and ordered to compensate the

village in the sum of shs. 60,000/=. He paid the amount. Then he appealed to the High

Court where he was not successful, hence the appeal to the Court of Appeal. Among

other D things the Court of Appeal looked into the scope of powers given to

sungusungu under the relevant law.

Held: (i) The Baraza la Jadi, a sungusungu organ, went beyond its powers when it

compelled the appellant to make the compensation;

E (ii) the money paid as compensation was refundable to the appellant.

Case Information

Appeal dismissed.

Rugarabamu, for the appellant. F

[zJDz]Judgment

Omar and Ramadhani, JJ.A. and Mapigano, Ag. J.A.: This action relates to the loss of a

grinding machine which was the property of the Masurura Ujamaa Village situate in

Musoma District, the proceedings of a Baraza la Jadi in respect of the G machine and

the upshots of those proceedings.

The chronology is a follows. The machine was stolen on December 12, 1986, during

the night and it was never recovered. Several informations were subsequently laid to

the secretary of the village, the third respondent Simon Warioba, which implicated

six H youths, the appellant included. On July 31, 1987, the appellant was

apprehended by members of the local Sungusungu group and brought before a

meeting of the Baraza la Jadi. The said meeting was chaired by the first respondent

Kirima Maso, the secretary was the third respondent, and the fourth and fifth

respondents, i.e. Mwita Rubirya and I Mwita Makori, attended the meeting as

members of

1992 TLR p135

OMAR JJA, RAMADHANI JJA, MAPIGANO Ag. J.A

the Baraza. In course of the meeting the Baraza found that the appellant was actually

A a party to the theft of the machine. The Baraza resolved that the appellant should

make compensation in the sum of Shs. 60,000/=. He paid the amount of November 7,

1987, and it is quite likely that he did so after his cattle had been seized by

Sungusungu to enforce the resolution of the Baraza. In January, 1988, the appellant

instituted a suit in B the High Court at Mwanza against the respondents. The suit

was one for damages for slander and assault, in respect of which he claimed a sum of

Shs. 200,000/= and Shs. 100,000/=, respectively, and for a refund of the Shs. 60,000/=

he had paid to the Village Government. On July 26, 1988, the High Court dismissed

the suit with costs. C

In support of his claims the appellant told the High Court (Munyera, J.) that he had

denied that he was involved in the theft of the machine; that false and malicious

statements were spoken of him at the meeting of the Baraza by the respondents

imputing D theft; that he was subjected to the thorough drubbing of 100 strokes; and

that thereafter the respondents directed that he should pay the compensation. He

called no witness. The respondents denied each and every allegation. They stated that

the appellant had admitted before the meeting of the Baraza that he had taken part in

the E theft of the machine when that charge was put to him by the third respondent,

and that the payment of the compensation was made by him in the context of that

admission.

The learned judge was not satisfied that the appellant was unlawfully compelled to

pay the compensation. Otherwise, he said, the appellant had ample time between the

day F of the sitting of the Baraza on July 31, 1987, and the day he paid the

compensation on November 7, 1987, to contest the payment before higher

authorities, which he did not.

The judge found that there was in fact publication of defamatory allegations

respecting G the appellant in the meeting of the Baraza. But the judge was of the

opinion that those statements were privileged and sincere. This is what he stated in

his judgment:

H It is the law that any publication imputing the commission of a criminal

offence is a defamation actionable per se. In this case there was such publication and

the plaintiff was branded a thief. But it was agreed as well that the village's grinding

machine was stolen. The machine was owned communally and every villager had an

interest in it, the eight I defendants inclusive. They were justified in trying to find

the thief so the

1992 TLR p136

OMAR JJA, RAMADHANI JJA, MAPIGANO Ag. J.A

A defamatory utterances against the plaintiff were made in a privileged occasion,

they were not promoted by personal spite of any defendant. For that reason

defamation is not proved.

In relation to the assault the judge also found that the appellant's evidence had come

B short. He wondered how the appellant could not produce even a single witness

from the village to support his case, if his allegations were really true. He found it

hard to believe that the appellant would be able to walk from the meeting after he

had received such a heavy thrashing. He adverted to the medical chit annexed to the

plaint and observed C that the materials contained in that document did not tally

with the thorough flogging described by the appellant.

So as we have said earlier the judge dismissed the suit in its entirety and awarded the

costs to the respondents. Aggrieved by the decision, the appellant lodged this appeal

D to us. We are surprised that it took the sub-registry almost three years to prepare

the High Court proceedings. The appellant is represented by Mr. Rugarabamu, while

the respondents appear in person.

We have heard and followed the arguments of both sides. With regard to the slander,

E we are unable to fault the trial judge's finding that the slanderous statements were

sincere and privileged to the extent that they were published to those people of

Masurura who attended the Baraza meeting. Appellant's Counsel has pressed upon us

the submission that there were people from another village, Lyamisanga, at that F

meeting, which is true. But if it is probable that the appellant admitted that he had

stolen the grinding machine, we think that the plea of justification was available to

the respondents in that respect, and we are of the opinion that there was probably

such admission.

With regard to the sound flogging and the forced compensation, the problem was that

G it was only the word of the appellant against the words of the respondents, and we

are disposed to share the misgivings expressed by the trial judge. Just why the

appellant could not produce even one witness to support his allegations, is not easy to

H understand. With respect to Mr. Rugarabamu, there was no misdirection on the

standard of proof on the part of the judge. What we understand the judge to have

held is that in the circumstances of this case the evidence of the appellant alone was

not sufficiently proponderant to estabish the allegations. We are not, therefore,

persuaded I by the argument that the judge

1992 TLR p137

was wrong to hold that there was neither a flogging nor a forced compensation. A

We are clearly of the view, however, that the Baraza la Jadi a Sungusungu organ,

went beyond its powers when it compelled the appellant to make the compensation.

The powers vested in Sungusungu are limited. Under Section 3(1) of the Peoples B

Militia Laws (Miscellaneous Amendments) Act 1989, they enjoy the same powers of

arrest for breaches of any provision of written law and search as those enjoyed by

police constables. Once they arrest a suspect their duty is to take him to the police for

any action the police may deem proper to take. The sooner this is impressed upon C

their minds the better for the administration of justice. It seems to us, therefore, that

the money paid as compensation was refundable to the appellant.

It follows from what we have stated this appeal should be dismissed in all respects,

save that the sum of Shs. 60,000/= is to be refunded to the appellant. It is ordered D

accordingly. It is also ordered that the appellant shall pay to the respondents only

75% of the costs, here and below.

E Order accordingly.

1992 TLR p137