Chikumbi Chilomo vs Madaha Mganga [1987] TZHC 7 (1 May 1987)


Ruhumbika, J.:This is a second appeal.  The appellant herein lost an appeal at the Mpwapwa District Court and therefore has appealed before this court. F
The respondent, Madaha Mganga, successfully sued the appellant in the Mpwapwa Urban Primary Court for recovery of 17 head of cattle unlawfully seized from the respondent by the appellant.
The undisputed facts leading to this case are that one person called Yona Mganga was convicted by the G  Mpwapwa District Court [in Crimininal Case No. 28 of 1984] for having burgled the appellant's house and to have stolen therefrom property of the appellant.  He was sent to prison for up to three years, and was also H  ordered to pay compensation to the appellant.  In execution of this order for compensation, the appellant went to attach some 17 head of cattle from the respondent, simply because he claimed that the respondent was a brother to Yona Mganga  The respondent objected to this unlawful attachment, and the Urban Primary Court of Mpwapwa found for him.  The appellant was ordered to return the 17 head of cattle to the respondent. I

Dissatisfied with the decision of the Primary Court, the appellant went to the District Court of Mpwapwa on A  appeal.  He lost the appeal.  Before this court in his oral submissions as well as in his memorandum of appeal, the appellant still laboured under the illusion that the respondent was responsible for the wrongs of Yona Mganga, as B  the two are brothers.  The appellant has not in any event been able to substantiate that the animals in question belonged to Yona Mganga and not to the respondent.
This appeal has no merit and must therefore fail.  As was rightly held in that old case of Gwao bin Kilimo v. CKisunda bin Ifuti 1 T.L.R. (R), 403 (at p. 405): "It is against general ideas of justice that a man should suffer or be punished directly either in person or in property for some wrong which he has not done himself".  In that case [Criminal Revision No. 1 of 1938] Gwao objected to the attachment of his two heads of cattle by Kisunda in execution of a decree passed against his son Mange.  The High Court held that the cattle were wrongly seized D  and were ordered to be restored to Gwao.
The respondent has no obligation whatsoever in law to have his 17 heads of cattle attached in order to satisfy a compensation order made against Yona Mganga, simply because the two were brothers.  This would be against the general ideas of justice. E
It is for the reasons above that the appeal is dismissed with costs.
Appeal dismissed.
1986 TLR p248

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