Court name
High Court of Tanzania

Kazungu Lushinge vs Juakali Degulla () [1985] TZHC 24 (21 September 1985);

Law report citations
1986 TLR 98 (TZHC)
Media neutral citation
[1985] TZHC 24
Mushi, J.

Mushi, J.: One Juakali Degula instituted proceedings against one Shipiling Kazungu claiming about 30 bags of a kind of millet called uwele, worth about Shs.1,900/=?  Judgment was entered in favour of Juakali to  B be given 30 bags of uwele or its equivalent value in money.  Shipilingi did not settle the decree and so the decree holder applied to the court for the attachment of the cattle of the judgment-debtor.  The Primary Court Magistrate  C granted the order to attach the cattle of one Kazungu Lushinge.  The attachment order was dully executed and a number of cattle belonging to the appellant, Kazungu Lushinge, were attached.  After the attachment, Kazungu complained to the Court in the following terms and I quote from page 2 of the Primary Court Proceedings: of 20/5/81: D
   "Kazungu Lushinga: Mdeni - Muhukumiwa ni mtoto wangu.  Kwa wakati huu anajitegemea anao watoto na kazi anayofanya kupokea mshahara na kupeleka kwake.  Ng'ombe zilizokamatwa ni zangu mdeni Mhukumiwa yeye hausiki". E
After this complaint, the Primary Court correctly commenced objection proceedings by serving notices on the other parties and hearing date was fixed.  On the date set for hearing the objector gave evidence in which inter alia stated and I quote:-  F
   SM 1:Kazungu Lishinge, Miaka 50, Msukuma -Amethibitishwa:  Mdeni mhukumiwa ni mtoto wangu alikuwa akifanya kazi kwa mdai - mhukumiwa.  Kazi hiyo alikuwa walipeana wenyewe wakati mdeni-mhukumiwa kwangu alikuwa katoka na alikuwa na  Gwake na watoto wake.  Mdeni - mhukumiwa mshahara alikuwa akitumia peke yake na familia yake. Baadaye wamegombana na kushtakiana na sikuelewa kesi hiyo.  Mara nimeshtukia  ng'ombe wangu wanawagwa hapo nyumbani.  Mimi sikuwa na kosa na  H mdai - mhukumiwa. Hapo mimi nilishangaa sana.
Also at the same hearing the judgment-debtor - Shipilingi Kazungu stated and I quote:  I

A    Mdeni-Mhukumiwa:- Shipilingi Kazungu, miaka 26, Msukuma - Amethibitishwa: Ng'ombe waliokamatwa sio zangu.  Haitoshi kwa mzee (Mpingaji) nimehama kuanzia mwaka 1975 na kuwa na mji wangu.  Nikiwa na mji wangu mdai-Mhukumiwa, alinijia kwenda kufanya kazi kwake.  Nimefanya kazi kwake hadi 1979 an kuomba pesa zangu.  Kwa wakati huo nilikuwa nikichukua  B kidogo kidogo idadi sasa niliyokuwa nikidai ni Shs.2,000/=.  Mara nilianza kudai naye akisema angenipa.  Nilienda hata kwa  balozi.  Mara mdai-mhukumiwa aliniwahi kunishtaki Mahakamani.
C After hearing the evidence as to the ownership of the attached cattle, the Primary Court made a finding on the objection raised by the objector.  The Primary Court rejected the complaint without deciding on the ownership of the cattle.  The Primary Court dwelt on the number of cattle attached which was not an issue at least in accordance with the   D court records.  The principal issue was whether the cattle which were attached belonged to Kazungu Lushinge or to judgment-debtor.  The objector appealed against the Primary Court decision to the District Court.  The District Court decision was that the appeal had no merits because, although the cattle belonged to the appellant as the judgment debtor  E was his son, he had the obligation customarily to settle the debt of his son.  The whole judgment is very short and for easy reference I reproduce it here and it reads:
F    AMRI  "Haya ni maombi ya kukataa kukamatiwa mali: Mjibu rufani Shipilingi s/o Kazungu alidaiwa na mjibu rufani Juakali Degula madai ya magunia 30 ya mawele thamani shs.1,900/= na alihukumiwa kushindwa, na baada ya kushindwa kulipa, mdai alikaza  G hukumu na ng'ombe 15 zilikamatwa toka kwa Boma la mpingaji Kazungu s/o Lushinge.  Ushahidi uliotolewa unaonyesha kuwa mdaiwa ni mtoto wa mpingaji na ng'ombe zilizokamatwa ni za baba wa mdaiwa, na kwa kufuata mila na desturi ya Wasukuma mtoto akidaiwa deni hulipwa na baba yake, na kwa kuwa mila hiyo inatumika katika sehemu hii na inakubalika,  H ingawa ng'ombe zilizokamatwa ni za baba wa mdaiwa, naona rufaani haina msingi na inakataliwa, na gharama zote ni juu ya ..............".
I Sgd). G.B. Kajuna
HAKIMU (W)  22/1/1982

A Haki ya kuomba rufani katika Mahakama Kuu imeelezwa.
(Sgd). G.B. Kajuna
HAKIMU (W)  29/1/82
B It is against this decision that the objector/appellant is appealing against the District Court decision.  Among the grounds of appeal which I consider most relevant are grounds Nos. 1 and 6 which read as follows:-
C    1.   Mdai alichukua kwangu ng'ombe 15 bila mimi kuwa na kesi na wala mdai tulikuwa hatudaiani naye.
   6.   Hakimu alionekana kuingiza mambo ya mila eti kuwa kwa vile ni mtoto wangu mimi ninaweza kurudisha madai yake.  Sijui kama ubaguzi huo ulikuwa wa kweli na haki.
D There are two questions to be considered and they are:-
   1.   Who is the owner of the cattle which were attached in execution of the attachment warrant to settle the decree in which Shipilingi Kazungu/judgment - debtor was a party? E
   2.   Does a parent of an adult child have any legal obligation to settle his/her child's debts incurred while leading an independent and separate life?
F The answer to the first question is not difficult to get.  It is already stated above that the Primary Court Magistrate did not decide the issue.  The District Court decision clearly states that the cattle which were attached belonged to the appellant.  This conclusion is correct even though the learned District Magistrate did not discuss the evidence.  The fact is   G that both the appellant and judgment - debtor stated that the cattle belonged to the appellant and there was no other believable evidence to the contrary.  Quite correctly therefore the evidence established that the attached cattle belonged to the appellant.
H Regarding the second question although the learned District Magistrate found that the cattle belonged to the appellant, he nevertheless found that the appellant was legally bound to settle the debt of his son in accordance with Sukuma customary law.  Although I have reproduced the whole District Court judgment, the relevant portion reads:  I

A    "Ushahidi uliotolewa unaonyesha kuwa mdaiwa ni mtoto wa mpingaji na ng'ombe zilizokamatwa ni za baba wa mdaiwa, na kufuata mila na desturi ya Wasukuma - mtoto akidaiwa deni hulipwa na baba yake, na kwa kuwa mila hiyo inatumika katika sehemu hii na inakubalika, ingawa ng'ombe zilizokamatwa ni za baba wa mdaiwa, naona rufani haina msingi ......" B
This is a bold statement with far reaching consequences.  It is unfortunate that the learned magistrate did not state the   C source and authority of this bold assertion.  There is no evidence on record of the existence of such customary law.  The courts are to apply the customary laws applicable to a particular community at a particular place but before the court applies the custom it must be proved by evidence that such custom exists and it is practiced by those concerned.  In this  D case, the appellant has protested right from the Primary Court that he has no legal obligation to settle the debts of his adult son who is leading an independent life.  The appellant stated that judgment-debtor had his own homestead with wives and children and that the judgment-debtor was employed and earning his own living.  Judgment-debtor confirmed  E that he had his own homestead and he was earning money for himself.  In his petition of appeal ground No. 6 which I have quoted above, the appellant has challenged the existence for such custom its truth and fairness.  As the learned District Magistrate's judgment was not supported by any evidence nor did it disclose the source of his assertion, the  F challenge posed by the appellant cannot be answered from the judgment.  There is therefore no evidence at all that a parent is legally obliged to settle the debts of his adult independent son.  Even if, it had been established that such custom, ever existed, the answer to the second question would still be in the negative.  This is so because to punish a person or to  G make him part with his property on account of another adult person whether such adult is a son of the person so punished would be repugnant to the principles of natural justice and contrary to public policy.  By public policy I mean   H that it is the declared policy of this nation, and indeed it is the practice of any civilized community that every person and more so, every adult should live on his own sweat and should be accountable and responsible for his acts.  Fortunately this court has on several occasions dealt with similar points.  One of these cases was Mwanza High Court  I Miscellaneous Criminal Cause No.22 of 1984. (unreported).  In this case I said and I quote from pages 2 and 3:

A    "It is unimaginable that a person can legally be forced to part with his property for an act he has not done but done by another person".
Again on page 3 of the same judgment I said:  B
   "This is not the first time that this Court has refused to recognize the existence of such law. Among the cases which this Court has considered involving a point of similar nature are:
   Meta Tebera v Isakwe Rongoya; [1967] H.C.D. 119: Masero Mwita v Rioba Masero [1968] H.C.D. 199: Mariba Wanyangi v   C Romara. [1977] L.R.T. No.7:
Then there is the most recent decision of this Court.  This is Mwanza (PC) Civil Appeal No. 88 of 1982 (unreported),   D Rashid Neyura v Athuman Mayunga.  In this appeal I discussed the principles which in my view make it impossible for this Court to accept the concept of taking away a man's property for a wrong done by someone else.  I wish to reiterate what I said by quoting the extract from the case of Gwao Bin Kilimo v Kisunda Bin Ifuti (1938)1 T.L.R.(R) 403  E quoted at page 16 of the judgment:
   "It is against our 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, though of course in the nature of things it is often impossible to avoid the infliction of F indirect suffering or loss in such cases".
It is, I think, common knowledge and no doubt, a laudable principle that every grown up person should be personally   G held responsible and accountable for his actions.
It is for the above reasons that this appeal must be allowed.  The appeal is allowed.  Both the District and Primary Court decisions are set aside.  It is substituted with an order upholding the objection by the objector/ appellant, and that the   H cattle attached in execution of the warrant in which Shipilingi Kazungu was the judgment-debtor should be returned to the appellant/objector.
Appeal allowed.  I