Lugega and 2 others v. R., Crim. Rev. 78-M-70; 5/12/70; Mnzavas, Ag. J.

 

Lugega and 2 others v. R., Crim. Rev. 78-M-70; 5/12/70; Mnzavas, Ag. J.

            The first appellant was the respondent in an affiliation case in the Geita District Court. Judgment was entered against him and after a few days the applicant applied for execution of the decree by attachment and sale of respondent’s movable property. The court broker, armed with an attachment order proceeded to the first appellant’s house and attached his movable property. The decree holder complained that the property attached did not meet the amount decreed and the court broker attempted to attach the first appellant’s shamba. All three appellants resisted this attempt and were charged with obstruction contrary to section 243 (d) of the Penal Code. They were convicted.

            Held: (1) “The learned district magistrate should not have accepted the application (which appears to have been made under section 3 of the Affiliation Ordinance, cap. 278 of the laws) for the simple reason that the application was made by the father of the girl and not the girl herself. Indeed the girl is not a party to the application. She is happily living with Mohamed together with their child. The only appropriate course in the circumstances would be for the girl’s father the applicant in the affiliation case, to file a suit in primary court and claim dowry from Mohamed. The affiliation case having been wrongly admitted any order arising wherefrom was ineffective.” (2) (Obiter) “Even if the affiliation case was properly admitted the attachment of Mohamed’s shamba was illegal because the attachment order authorized the court broker to attach movable property only. In the circumstances Mohamed had not only a duty, but right to resist the illegal attachment of his shamba.” (3) Conviction quashed and sentence set aside.