19921208 TZHC Dar es Salaam6

! HiJtiWI l\NYAHD'.iA. o • o o.,,.., •,. o • • • • • . • ~ o • •,.., • • • • 0 t• .Ai?~'~L/;.NT versus JUuGMGi<JT I~WUE J. £ * ' Hi,MISI. NNYAI··Jl/"li\, tha nppcllant her~in, is a member of the PGoplb's Milit_ia popu_larly known as 11Mgarnb9". He wears ·a special ..J uniform and has n whistle which h0 uses to raise n.larm when ho needs assistance of the public to apprehend a suspect. On 10_.9.90 at,about 0.45 p.m. the appellant, in the.company of one Gilbort Dikal'a 1 met the rcsponckmt, s.rtn:i- l<ASHil.iI, as he was walking back hoQQ from the porabc shop. ThQn the appellant is alleged to have uttcr~d the followinG worcls: Q "Mtoto huy-1.1 ni jcu:ri sana, sirnruna! Nakutafuta si!m nyinei. Leo lazir.m. nikukanate na kufanya ni pcmda vyo. 11 .':/hen he finished uttering .thcsia uords 4e and his frfond GilbGrt jumpod at the respondent and when t!ic respondent started running away th1:1f · gave c_hase, blovlinG their whistl?I·&; as thay trailed tho respondent., Thc_rcspon.aent managed to reach home sa~ely as he was fastarthan the appellnnt and his friend anri.so they gave up tho ehos~.. On rGachinc; homo the respondent discovcreJ. that as be was running he dropped his watch valued at shs.1900/-, one shoo, valu~d at shs.1600/- a pair,, and cash shs-.5550/- rnnkin~ a total of shs. 9000/- in uu. l',s tha loss of th.se_o thinCTs wus caused by tho unju... stifiod act of the appellant and his colleague in frightening the raspondent and chnsin13 him the respondcnit compled.ned to the local ooneWation trfbunaJ.,: which. .iJl tw-n Nf~e<l him to thG CCf,1 Office. \ 2 ... r ... , 'l'he appellant and his collcac;uc Gilbert were summoned at the oov; Office and they ad.rai tte,.i to hc:vc cnused the ].osiz: of the respondent's piropGrty anc1 t.mdcrtook in -;:rritin5 to compensate himo As the appe- llnnt cJofaultcJ the roG~orn.1cnt toot the r.inttcr to the primary court of Mvonero,, The prir.mry court disr.iissed tho suit on the e;round that the respondent has. only himself to blanc ·:or running mmy from the . ·People's MUtia., Tho argumm).t is th,,t if he hnci done nothing 11.rrong · had then he/no reason to :rrun nwny~ Dince he would hnvo nothing to fear. If he had J.onc sorncthin6 wronG then t.hc appeUant tms justified in chasing him so .that ho ·could arrest Lim. 0n appeal to tr~e ~·istrict Court of Morogoro· t·.1e . le~,mioo Senior District ~'laeistr.::i.te 9 in a somewhat confused jud(sflc,lt 1 revei>sed tha decision of the Prinary Court and ordered the appeI.lant to compensate the :responr)cmt to the tune of shs.,9050/-,. . The appellant has now appealed to this courto His r:iain cround of cornplaii.lt is that the appellate court was biascu against hi□ and reversed the decision of the Frimary Court wi.thout any evidence of the aUegr,tions- relating to the listed losseso 'iilith respect this complaint is un:}ustifiedo Tha ·appellant had ' admitted to have. caused. the losses at th0 CC1~ office and. undortook to compensa:t;e tho respondent,, This c:.df]1ission wns ter..clered at the trialci, dhether the responc10:nt hau don~i t1nythinc; wronc; to make him a suspect or not is a raatter ·s~cially ,1ithin the app,:iUant 1s knowledge and so it was for nim to uGe that to justify his actione 4s the appellant cou].c1 not a:Uegc anythin3 acairu:;t the respondent~ it follows· that what he dic1 ar.1ot:mte.J to nbusc of his powers as a r.Jcnbcr of the People I s l1liH tia and where such abuse lends to loss0s to other people he oust r.iakc good those losses in a suit Hke this one,, !Jy the, words he utter,,K1 he put the respondent in fear.· anc1 running hone ,1ns tho natural thing fair hir:i to uo.. It wns- incu.:1bcmt upon the: trial court to call upon the appellant to juatify his· acticn first anc1 not shift the burdan to the rcspondcnt 0 The rcspon:Jen.t was entitled to enjoy his 3/••• 3 freedor.i of r.1ovcr.:.cnt nnc: when thnt fircedon is threatened he haq tho tight to do whntovcr was in his powor to safeguard it. As .tha appoUant cou.].d n.dt justify his action he must pay ll.osses \ :resulting c1iroct].y from his ;,-1roncfu]. act .. In the final rGsult I hoJLd tht,t this· nppoal has no merit afld I c1isr.iiss it with costse Ii'or avoidance of cloubt since tho appollant•s liability to the r0.sponc1ont iG joint anc1. several with that of his: ' eollcgue Gilbcrt·uikarc:. who was n co-Cle-fondant at tho trial tho respondent can recover h~s compensation and costs from the appellant alone ancl leave it to the appellant to recover half tho amount ·from his ·joint tortfoasor Gilberto It is so orderocl., Dolivorod ·in chambers at liio:ro~oro· this Gth day of Decer.iber.-, 1992 in tho prcsoncc of: . I·1',iEIGI NHYi:Jtfli. appGllant in person. 3.:fil'.i'U -~-U:.SI-n:L rlcspondcnt in parson. JUiJG~