MARCELA BARTHAZAR v HUSSEIN RAJAB 1986 TLR 8 (HC)

 

MARCELA BARTHAZAR v HUSSEIN RAJAB 1986 TLR 8 (HC)

Court High Court of Tanzania - Bukoba

Judge Moshi J

16 March, 1987

CIVIL APPEAL 16 OF 1985

Flynote

B Criminal Law - Compensation order - Compensation in respect of convicted juveniles

-Headnote

In the course of a fight between two school children one of them was wounded. The child who

wounded the other was convicted of unlawful wounding and ordered to pay compensation to

the wounded child. C

Held: (i) A compensation order in respect of convicted juveniles may in an appropriate case only

be made against a parent or guardian of the child or young person. It cannot be made against the

juvenile. D

(ii) a parent or guardian against whom a compensation order in respect of a convicted

juvenile is made must be given an opportunity to be heard.

Case Information

Appeal allowed. E

No case referred to.

[zJDz]Judgment

F Moshi, J.: Before the Urban Primary Court of Bukoba, the child of the appellant aged 13

years, Peter s/o Ponciani, was charged with, and convicted of, unlawfully wounding the child of

the respondent aged 10 years, Haiba d/o Hussein, c/s 228(1) of the Penal Code. Peter Ponciani

was placed on twelve month's probation, and ordered G to pay Haiba Hussein a compensation

of shs. 400/=.

The respondent was dissatisfied with the amount of compensation awarded. He filed a suit in the

Bukoba Resident Magistrate's court, based upon the urban court case, against the appellant for a

compensation of shs. 20,000/=. It was H Civil Case No. 44 of 1983, and he was awarded a

compensation of shs. 1,000/=. The appellant was aggrieved, and hence this appeal.

It is clear to me that the order by the Urban Primary Court that the appellant's child was to pay

compensation was ultra I vires. Compensation in respect of convicted juveniles is governed by

section 21 of the Children and Young Persons Ordinance, Cap. 13.

1986 TLR p9

MOSHI J

A Such an order may in an appropriate case only be made against a parent or guardian of the

child or young person. It cannot be made against the juvenile. Even if the order had been made

against the appellant, a parent, the position, in my view, would not have changed. Such an order

would have been invalid for the following reasons. Section 21(2) of Cap. 13 provides that a court

may not order a parent to pay a fine or compensation or costs without giving the parent an B

opportunity to be heard. The urban court did not give the appellant an opportunity to be heard

notwithstanding that she could easily have been available. She did not appear before the urban

court. She was not summoned to appear. In the C circumstances, no lawful compensation order

could have been made against her. For the foregoing reasons, the order for compensation made

by the urban court is hereby set aside.

Considering the appeal itself, it seems to me that it has merit. It was amply established before the

urban court and in the court of resident magistrate that the respondent's child, Haiba d/o

Hussein, sustained some injury at the hands of the child D of the appellant, Peter s/o Ponciani.

But the circumstances, as disclosed in evidence, were in my view such that it was undesirable to

order the appellant to pay any compensation. The parties are neighbours. The children were

attending E school and, at the material time, they were coming from school together with other

school children. There was no evidence or indication from the evidence that the appellant in

any way conduced to the commission of the offence by neglecting to exercise due care of her

offending child. The incident was a result of common trivial school children's playful F

squabbles for which it is wrong, of itself, to hold parents or guardians responsible by way of

payment of compensation. It is neither conducive to, nor shall it promote, good and amicable

neighbourly relations. The injury itself was medically categorised as a mere "harm" (Exh.A), and

the claim in the plaint about permanent disfigurement was, as rightly found by G the trial

court, an exaggeration and clearly unsupported by evidence. On the evidence, and in the

circumstances, there was no material upon which the lower court could have properly founded

an order for compensation against the appellant. There was no evidence that the appellant was

uncooperative with, or that she displayed a hostile attitude H towards, the respondent shortly

after the incident. If anything, it was the reverse. I am satisfied that the order for compensation

was wrongly made, and that it cannot be allowed to stand. I

1986 TLR p10

A For the foregoing reasons, I allow the appeal, set aside the judgment of the Bukoba Resident

Magistrate's Court, and the orders for compensation by both courts below, and hereby direct a

refund of the money in the event that the order has been executed. I make no order as to costs.

Appeal allowed. B

1986 TLR p10

C