SIMANGO KEHEGU v ATHANAS TARAYANI 1989 TLR 170 (HC)

 SIMANGO KEHEGU v ATHANAS TARAYANI 1989 TLR 170 (HC)

Court High Court of Tanzania- Mwanza

Judge Mwalusanya J

29 September, 1989

Flynote

Constitution Law - Constitutional right - Right to the protection of property. B

-Headnote

In 1972 seven cattle belonging to the appellant were stolen. The respondent was a

suspect. With the advent of Sungusungu in 1988 the appellant sent the respondent to

the C sungusungu to be tried. The respondent was ordered to compensate the

complainant (appellant) the seven head of cattle. However when the sungusungu

were executing the attachment order they took ten head of cattle of which seven

were handed to the D appellant while the remaining three were taken by

sungusungu. The respondent successfully sued the appellant for the recovery of his

ten head of cattle in the Primary Court. The appellant appealed to the District Court

where the amount of cattle recoverable was reduced to seven (7). The appellant filed

an appeal in the High Court. E

Held: (i) Under the Constitution of Tanzania only courts of law are empowered to try,

convict and sentence offenders;

(ii) the traditional army did not have the powers to order compensation and

the appellant having used an unlawful method for getting redress must take the

responsibility F of refunding the seven head of cattle he was unlawfully

compensated;

(iii) the respondent should have sued sungusungu to recover the remaining

three head of cattle.

Case Information

Appeal dismissed. G

[zJDz]Judgment

Mwalusanya, J.: The appellant Simango s/o Kehengu was successfully sued at Noreme

Primary Court in Serengeti District by the respondent Athanas s/o Tarayani in a H

claim of ten head of cattle which had been unlawfully seized by the traditional army

(Sungusungu or Baraza la Jadi) from the respondent and given to the appellant. The

appellant appealed to Serengeti District Court and his appeal was partly successful in

that he was ordered to refund only seven head of cattle instead of ten. Still aggrieved

by I that decision, the appellant has now appealed to this court. At the hearing of

this appeal, the appellant was represented by counsel Mr. Sandhu.

1989 TLR p171

MWALUSANYA J

What happened was that sometime in 1972 the appellant had his seven head of cattle

A stolen. He suspected the respondent to be the thief. With the advent of

Sungusungu in l988 the appellant sent the respondent to the Sungusungu to be tried.

It is said the respondent was tried and convicted by the Sungusungu and was ordered

to compensate the complainant (the appellant) the seven head of cattle. However

when the members of B the traditional army were executing the attachment, they

attached ten head of cattle from the respondent. It is said only seven head of cattle

were handed over to the appellant while three head of cattle were 'pocketed' by the

Sungusungu.

The trial court ordered the appellant to refund all the ten head of cattle to the C

respondent. However the District Court held that appellant should refund only seven

head of cattle which he had been given; and that respondent should have sued the

Sungusungu for the three head of cattle which they had 'pocketed'. D

There can be no controversy that the Sungusungu are operating outside the Rule of

Law. They have no power to try and convict offenders nor make compensation

orders. Under our Constitution only the courts of law are empowered to try, convict

and sentence offenders. Under Article 13(3) of the Constitution it is stated that:

'Rights of an individual and the community shall be protected by courts of law and

other organs of the E government'. But the traditional army is neither a court of law

nor an organ of the government with judicial powers. And Article 24 of the

Constitution states that every individual has the right to the protection of his

property; and that his property may only be taken from him when found liable by a

court of law or when there is a legislation F allowing confiscation of somebody's

property but which makes adequate compensation for the affected individual.

Therefore it is crystal clear that the traditional army usurped the judicial power

which it does not possess under our constitution. The judicial power is vested in the

court of law only. So the conduct of the traditional army in this case was G patently

unlawful. And the appellant having used an unlawful method for getting redress,

must bear responsibility and refund the seven heads of cattle that he was unlawfully

compensated. I agree with the learned Senior District Magistrate that the appellant is

H only liable for seven heads of cattle which he was given. The respondent should

have sued Sungusungu that had unlawfully pocketed the three head of cattle.

In the event this appeal fails and it is dismissed with costs. the appellant should

refund the respondent only seven head of cattle.

I Order accordingly.

1989 TLR p172

A