Court name
Court of Appeal of Tanzania

Marwa Ngega vs Kirimamase & Others () [1992] TZCA 22 (09 June 1992);

Law report citations
1992 TLR 134 (TZCA)
Media neutral citation
[1992] TZCA 22

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

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

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

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.

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