Omar and Ramadhani, JJ. A. and Mapigano, Ag. J.A.: This is an appeal from the judgment of the High Court at Tabora (Chipeta, J.) delivered on January 29, 1988, by which the appellants were jointly severally adjudged H liable to return 305 head of cattle and 2 goats to the respondent Dima Nhorongo, or pay him their pecuniary equivalent, and to meet the costs of the suit. In this judgment I will, where I deem suitable, retain the personal names or descriptions of the parties that they bear in the record of the High Court. The appellants are represented I by Professor Fimbo, learned advocate, of the University of Dar es Salaam's Legal Aid Committee, while
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the respondent is, like he was in the High Court, represented by Mr. Ntabaye, learned advocate. A
The plaint was drawn by Mr. Ntabaye and presented on January 1, 1985. The key paragraphs were 3, 5 and 7. In paragraph 3 the plaintiff, now the respondent, stated that in December, 1982 a group of people known as Sungusungu invaded his homestead at Udongo Village, Sikonge Ward in Tabora District and drove as was his B 316 head of cattle and 2 goats, after torturing him, and that the animals were soon enough distributed to the defendants. In paragraph 5 he stated that the defendants had no colour of right over the animals. And in paragraph 7 he stated that none of the animals in question had been returned to him despite several demands. The C principal relief claimed by the plaintiff was the return of the animals.
In their joint amended Written Statement, drawn by the Tanzania Legal Corporation and presented on May 15, 1985, the defendants denied, vide paragraph 2, that a group of Sungusungu invaded the homestead of the plaintiff D and drove away any animal. They claimed that at a certain meeting held at Ipolo the plaintiff made a free and voluntary confession that he had stolen various numbers of cattle from seven of the eleven defendants and also poisoned 3 head of cattle and 2 goats belonging to the first defendant Imeri Maleva resulting into their deaths. E They also claimed, vide paragraph 3, that he voluntarily offered to return the stolen animals to their respective owners or compensate them in kind, and that he signed both the confession and the offer. They further claimed, vide paragraph 4, that pursuant to the said confession and offer the plaintiff willingly rendered 171 head of cattle F and 2 goats to the eight defendants. Wherefore the defendants prayed for the dismissed of the suit and for costs.
As I said a moment ago, the Written Statement was drawn and filed by the Tanzania Legal Corporation. Mr. Lukwaro, learned counsel of that Corporation, appeared on behalf of the defendants in the High Court. G
It later came to the knowledge of the High Court that the 9th defendant Simon Falasila had actually passed away before the institution of the suit and the learned judge struck out the suit as it related to him, and I think that was a H thoroughly proper thing to do. According to the Written Statement, the plaintiff had admitted to have stolen 16 cows from Simon Falasila and had returned the cattle to the deceased. I
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A Four issues were drawn and recorded, namely:
1. Whether the number of cattle collected from the plaintiff was 316 or 171.
2. Whether the cattle were given voluntarily by the plaintiff or not.
B 3. Whether the plaintiff admitted the alleged thefts and offered to return allegedly stolen cattle.
4. What remedy or remedies are the parties entitled to.
C In this judgment the trial judge found that 305 head of cattle and 2 goats were collected from the plaintiff. He stated that he accepted the testimony of PW.2 Jisandu Dima and son of the plaintiff.
According to the account of P.W.2, the animals were collected by some Sungusungu vigilantes on four occasions. D On the first occasion, when the plaintiff was absent, having travelled to Igunga, 9 heads of cattle were taken away. On the second, third and fourth occasions 280 head of cattle plus 2 goats, 16 heads of cattle, and 11 head of cattle were, respectively, collected by Sungusungu.
E The defendants, as pointed out, admitted receiving some of the animals, as follows: first defendant Imeri Maleva - 3 head of cattle and 2 goats; fourth defendant Sayi Kadala - 9 head of cattle, fifth defendant Andrea Mgagani - 79 head of cattle; sixth defendant Matwiga Gaga - 8 head of cattle; seventh defendant Shija Auganga - 25 head of F cattle, eighth defendant Yunge Ndaki - 9 head of cattle; and eleventh defendant Kasanga Tumbo - 18 head of cattle. There was evidence that the tenth defendant Dasu Madigija, who died during the pendent of the suit, had received 16 head of cattle.
G For my part I am quite satisfied that the judge was entitled to rely on P.W.2. Only that he made an obvious arithmetical slip as to the total number of cattle collected by Sungusungu. The figures 9,280, 16 and 11 certainly add up to 316 and not 305. I would uphold the decision of the High Court on this point save as just indicated.
H As there was a large measure of untimely between the second and third issues, they admitted of being taken together and, the judge did precisely that. They were the bones of serious contention and a good deal of the arguments in the High Court and in this Court was directed to them.
I The plaintiff denied that he voluntarily and willingly offered to surrender the animals. He admitted making a confession that he had stolen cattle from the eight defendants, but claimed that he did
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so after experiencing extreme torture at the hands of Sungusungu and in order to save his life, and that the said A confession was absolutely false.
His narration of the torture was a lurid one: He was abased and tortured for two days consecutively. On the first day he was forced to take off his clothes in full view of the crowd. Next he was hustled away to a place called B Kiwanda (i.e. factory) where he was physically tortured and forced to admit that he had stolen cattle. So Kiwanda bears a perverted meaning. He gave in and made a false confession. On the following day he was first roughed up and later shot on the head with an arrow. If this be true and if in fact he had already made a C confession, that assault was wanton and cruel, even sadistic. He fell down and lost consciousness. Later he returned to his senses, and at that point his torturers had him eat human excrement, and that indeed was the most horrid aspect of his account. On being released he took his grievances to the police and thence to the hospital for treatment. It was clear from his evidence, however, that none of the defendants was a party to the actual torture. D
He denied that he had stolen any animal, pointing out that he has never been prosecuted for such an offence.
It was common ground that criminal proceedings were subsequently instituted in the district court against the first E defendant and four other persons, that is, Kidari, Kawawa, Fumiki and Makerege. The proceedings were, however, discontinued by or at the bidding or someone on high.
Almost without exception the defendants as well as their witnesses DW.6 Richard Noah Ng'ombeyapi, DW.9 F Sakwa Dotto and DW.10 Zololo Gambeshi, denounced the plaintiff as a notorious rustler. One, the eighth defendant Yunge Ndaki, who happened to be the elder brother of the plaintiff, told the Court that the plaintiff began rustling since when he was living at Igunga, that the plaintiff was originally called Noneka Ndaki, that Dima G Nhorongo is a nickname that was derived from such obnoxious enterprise, and that the plaintiff's moving to Ipole from Igunga was actually a flight from justice. There could be hardly any doubt that the relationship between the two brothers was rancorous. H
Their evidence showed that the plaintiff had been boycotted by his villagemates. The eleventh defendant, a fairly well-educated man with a sad political past, judging from his own testimony, was asked by the judge whether he approved ostracising a suspected rustler. He replied that he would not, but qualified his answer with the caustic I remark that "but it is the ends that justify the means",
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A and with that he wound up his testimony. As Professor Fimbo reminded us, that unscrupulous philosophical principle is said to have been openly espoused by Machiavel, a Medieval statesman and another.
B The first defendant who was described as a Sungusungu commander accused the plaintiff of having poisoned his 3 head of cattle and 2 goats. He did not see the plaintiff doing so. That is what he had just picked up second or third or fourth hand.
The third defendant, a member of Sungusungu, and his older brother the eleventh defendant, accused the plaintiff C of having stolen 18 branded head of cattle which belonged to the eleventh defendant. The two defendants alleged that the cattle were stolen on various occasions since 1973, the year the plaintiff came to settle at Udongo from Igunga. They alleged that reports about the thefts were made to the authorities but that nothing material came of those reports.
D The fourth defendant accused the plaintiff of theft of his 9 branded head of cattle, the incident taking place seven years back, i.e. in 1979. He said that he coursed the trail made by the animals, which trail led to the homestead of the plaintiff. He claimed that he reported to the police about the incident and that nothing was done by police.
E The fifth defendant, also a member of Sungusungu, accused the plaintiff of having robbed his branded 79 head of cattle on June 14, 1979, at about 10 a.m. His allegation was that the robbery took place in the pasturage and that his cattle-hand was shot with firearm and killed. He also alleged that he reported the incident to the police, F and that he subsequently traced some of the stolen animals: 9 head at the homestead of one Abdallah at Urambo; 1 head at the homestead of one Petero at Urambo; and 17 head at the homestead of one Karatasi at Ulyankulu. If G his evidence was true, the said Abdallah, Petero and Karatasi revealed to him that they had stolen the cattle at the instance of the plaintiff. He admitted that the plaintiff was not arrested in that connection, claiming that the police had intimated that they were "afraid of the Government to arrest him". This explanation was echoed and H underscored by the eleventh defendant who portrayed the plaintiff as "a leader of rustlers, a feared and very subtle man, with friends in high places".
The sixth defendant charged the plaintiff with having stolen his 8 head of cattle, branded, seven years back, i.e. in 1979. Like the others he had also made a report to police about that incident.
I The seventh defendant, also a Sungusungu, called that he lost 50 head of cattle and 35 goats in 1972 when he was residing at
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Unjili village in Igunga. He said the cattle were branded. A
The eighth defendant stated that his 10 branded head of cattle were stolen six years back, i.e. 1980, and that he reported the incident to the police mentioning the plaintiff and DW. 10 Zololo Gambeshi as suspects, and that the police did nothing. As we shall see presently, the evidence of DW. 10 was supportive. B
The defence case showed, by and large, that at two meetings held at Ipole and Udongo and attended by the top leadership in the locality, the plaintiff was interrogated and that as a result of those interrogations he admitted having stolen the animals from the eight defendants. It is not quite clear who chaired the two meetings. C
The defence case also showed that the plaintiff offered to return the stolen animals to the defendants or to recompense them and that no oppression whatever was brought to bear on him. It further showed that the third defendant (on behalf of his brother the eleventh defendant) as well as the fourth, fifth, sixth and seventh defendants, D received the cattle at the Ipole meeting, and that the eighth defendant received his at the Udongo meeting a few days later. It should be observed that the 171 head of cattle referred to in paragraphs 2 and 4 of the Written Statement did not include the 9 head that went to the eighth defendant. E
Furthermore, the defence case showed that all the cattle returned to these defendants, with the exception of the fifth defendant, still bore the respective brands of the defendants. As for the fifth defendants, he claimed that 16 head out of 79 he received were still bearing his brand. F
But there was conflict in the defence case as to who collected the animals from the homestead of the plaintiff. One hand some witnesses said that the animals were bought to the meetings by the plaintiff himself. On the other second defendant, who was the secretary of Sungusungu and whom the judge believe, stated that the animals G were collected by Jeshi la Sungusungu.
The evidence of Dw.9 and DW.10 touched on what took place at the Udongo meeting. The two witnesses joined the chorus of some of the defendants in claiming that the plaintiff did willingly and voluntarily confess to having stolen Yunge's cattle and that the plaintiff willingly and voluntarily offered to return the animals. More importantly, H the two witnesses testified as to their criminal dealings with the plaintiff and their accounts in that respect made quite curious reading.
DW.9's evidence relating to his dealing with the plaintiff may be summarized as follows: The plaintiff once I dispatched him and
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A one Gulucha, who did not give evidence, to steal 1 head of cattle which belonged to one Gidoja, who also did not give evidence. The plaintiff had sold him a magical medicine for Shs. 3,000/=, asserting that the medicine could benefit him in two way, namely, to bear him wealth and to protect him against arrest. He went and stolen the B animal and then drove it to a cattle market at Sikonge. The medicine did not work, for he was apprehended by the owner of the animal. He was, however, pardoned and he went to the plaintiff to demand his money who refused the demand. Under cross-examination DW.9 faltered and divulged that he had been "taught", and it may C be noted that all this stuff had not been put to the plaintiff while he was testifying.
I turn to DW. 10. According to his story, some time in 1980 the plaintiff sent him off along with one change, the son of the plaintiff, and two other men who were strangers to him, to steal cattle from Yunge the eighth defendant. D The plaintiff had provided them with a medicine or charm which allegedly caused people to go to sleep, for which he paid a sum of Shs. 500/=. The four went and stole 10 head form Yunge and drove them to an auction-market with a view to selling the same. At dawn, on their way to the market, he chickened and fled. He claimed that E those were the very cattle that were returned to Yunge at the Udongo Meeting, implying that his partners in the theft had sent the cattle to the plaintiff.
Subsequent to his flight. Again, DW.10's allegation against the plaintiff was not put to the plaintiff when he was in the box.
F The judge accepted the evidence of P.W.2 that first 9 head of cattle were taken away by Sungusungu while the plaintiff was away and before the two meetings were held. He pointed out that the evidence of PW.2 on that point was corroborated by that of the sixth defendant. He then expressed the view that piece of evidence "cast a dark G shadow on the defendants' wholesale claim that the plaintiff voluntarily handed over the cattle to the defendants after he had voluntarily confessed steeling cattle".
The judge found that the plaintiff was actually assaulted and wounded. He reached that finding after reviewing only H the plaintiff's case. Professor Fimbo has taken issue with approach, but I leave that for later.
Next the judge went on to review the defence case and to analyse the same. He then came to the following I findings: (1) that the plaintiff's account was substantially true; (2) that most of defendant's denials and allegations were total lies or fabrications; (3) that the plaintiff was brutalized and humiliated; (4) that the
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plaintiff's confessions were not voluntarily made; and (5) that the plaintiff did not voluntarily give up possession of A the animals. These were his answers to the second and third issues, and he concluded by saying that "the animals were wrongly taken, wrongfully parted with, and wrongfully retained and such of the defendants as retained the animals or any of them and all those who were instrumental to the taking and retention of the same, are guilty of B the tort of conversion".
The judge was not in the least impressed by DW.9 and DW.10. He said, in effect, that the two witnesses had simply recited in Court what had been manufactured and fed to them. C
It was Professor Fimbo's suggestion that the tort of conversion was not part of the plaintiff's pleadings. but I think that this proposition is not well founded, notwithstanding Mr Ntabaye's contention in the High Court that the plaintiff was resting his case on "unjust enrichment". D
I entirely agree with Professor Fimbo that it was essential that the plaint should allege a conversion by the defendants. It should, however, be kept in mind that in principle no particular form of words is requisite in alleging conversion, provided the fact of conversion is sufficiently stated, and I underline the words "sufficiently stated". E The allegation may take the form of either direct averments of a conversion or statements of fact from which a conversion may be legally inferred, and I also underline the words "legally inferred". Accordingly, a mere misdescription of a claim by the plaintiff or his advocate is immaterial. The substance of the pleadings must be read F as a whole and kept in view.
As already mentioned, the kernel of the plaint lay in paragraphs 3,5 and 7. Reduced to their element those paragraphs alleged that the defendants willfully and wrongfully took his cattle by force or duress, or detained them willfully and wrongfully, and that he made demands on the defendants, for their return, who refused to do so. In G my opinion the allegation of conversion was legally implied by those averments.
The next and related point taken by Professor Fimbo was that no issue was drawn in relation to conversion. I have H also been unable to accept this argument. As shown, the defendants met the plaint by claiming in their Written Statement that they received the animals from the plaintiff himself, that no force or inducement whatever was applied to the plaintiff, that the cattle were their property, and that the number given them was loss than the number I
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A alleged in the plaint. The plaintiff's allegation of demand and refusal was not traversed and could not, therefore be an issue.
In my opinion issues recorded corresponded with the pleadings and essentially embraced the whole dispute in the suit, though another judge might have phrased them differently.
B With regard to the fourth issues, the judge, as mentioned at the outset, entered judgment for the plaintiff against the defendants for the return of 305 head of cattle and 2 goats, failing that, to pay the pecuniary value thereof, jointly and severally. But as I have already pointed out, if the judge believe PW.2, and if he was right in adjudging C the defendants joint-tortfeasers, a point I will recur to later, then the order should have been a return of 316 head and 2 goats.
I pause to consider the position of the tenth defendant Dasu Madigija, who is listed in the memorandum of appeal D as ninth defendant. Dasu Madigija died after the institution of the suit but before the hearing was concluded. This comes on page 98 of the record. He had, before he died, written a letter to the High Court, saying that he was too old to follow the Court proceedings and appointing the second defendant as his agent, which is permissible under E rules 1 and 2 of Order 3 of the Civil Procedure Code 1966.
In my firm view, the second defendant's authority lapsed as soon as the principal died. The plaintiff should have been advised to apply for the deceased's legal representative to be made a party in place of the deceased, if he F wanted to maintain the claim against the deceased, in terms of rule 4 of order 22. This being my view, I would hold that the continuation of the suit against the tenth defendant subsequent to his death was misconceived, and I would strike out those proceedings.
G I turn to the grounds put forward in the joint memorandum of appeal. I have noticed that some of the grounds of appeal are not far removed from one another, and that several are directed against the judge's findings as to the circumstances under which the plaintiff came to part with the animals and as to the legality or otherwise of the defendants appropriation of the animals.
H As aforementioned, the judge went along with the evidence of the plaintiff and held that the animals were willfully and wrongfully appropriated by the defendants, most of the animals after the plaintiff had been subjected to torture and a false confession extorted form him; and that the tort which the defendants committed in respect thereof was I conversion, though he did not particularize what sort of conversion.
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As observed earlier, Professor Fimbo's complaint is that the finding of the judge in regard to the question of torture A was made before the judge had evaluated the evidence of the defendants. Learned counsel has asked this Court to appraise the evidence pertaining to that point and make its own finding, citing the case of Martha Michael Wejja v The Hon. A.G. and three others [1982] T.L.R. 35 at 43. I will dispose of this matter right away. I think B that this is a fair and valid criticism. the evidence of the plaintiff should first have been pitted and balanced against that of the defendants before making a finding on that point. I have accepted counsel's invitation to appraise the evidence on that matter and make my own finding, an exercise which this Court is after all legally C obliged to carry out.
Professor Fimbo's second submission was that the judge failed to scrutinize the evidence given on behalf of the plaintiff. He pointed out what he considered to be material discrepancies and disparities in that evidences. D
The third point taken by Professor Fimbo was that the judge erred in dismissing the evidence of the defendants and their witnesses in a summary and blanket manner. It was his contention that the evidence in question established, E on balance, that plaintiff was not tortured, that his confession was not obtained by oppression, and that he willingly offered to return or refund the animals. It was also his contention that the evidence of D.W.9 and D.W.10 in particular established that the plaintiff had stolen and poisoned the animals of the defendants. F
Learned council accordingly contended that the judge erred in law in failing to hold that the defence of retaking animals had been successfully pleaded. If in fact the plaintiff had committed such thefts the defendants were legally entitled to retake the animals, and there was no need for them to go to the bother and expense of litigation to G remove them.
Professor Fimbo made reference to the unsavoury remark made by the eleventh defendant that "it is the ends that justify the means". He pointed out correctly, as demonstrated supra, that the remark was made in reply to a question put by the judge whether the defendant approved ostracizing a suspected rustler- and had no reference to H torture. Counsel has urged this Court to find that the decision of the judge upon the issue of torture may well have been coloured by that remark. I will also dispose of this matter straightaway.
I would dismiss counsel's apprehension as baseless. I have I
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A noticed that the judge made reference to the remark only one in his judgment, and that is when he was recapitulating Mr. Ntabaye's final submissions. What's more, there is nothing in the judgment of the learned judge which shows, or tends to show, that the remark in question had any influence upon his mind.
B I will now proceed to decide Professor Fimbo's other points. What I deduce from the defence case is that the plaintiff committed several cattle thefts in a space of eight years, i.e. between 1972 and 1979, and what he had kept the stolen animals at his homestead. Like Mr Ntabayo I ask myself: Is it not against the human grain? And I C wonder whether even the Mafia does operate in such a daring manner. It is hard to believe.
It was also said that several reports were made to the police against the plaintiff but that no meaningful steps were ever taken by them. It is hard to believe that allegation. As pointed out, the plaintiff was depicted as a feared and D fearless character. The judge did not buy that story. The same with me.
It might very well be that the plaintiff had the ill-fame of being a rustler in that area, but there was, in the last analysis, nothing probative in the evidence of the defendants themselves that he had stolen their cattle. Probably it E was in anticipation of such finding that D.W. 9 and D.W.10 were brought forward.
The two witnesses, as mentioned above alleged that they were once induced by the plaintiff to commit cattle thefts. F I notice, however, that the allegations were not put to the plaintiff whilst he was in the box. As a rule the offence should have done so in order to give him the opportunity of deny or admitting the allegations, or of making any other explanation. Secondly, and more telling, was the disclosure of D.W.9 that he had been "taught". Thirdly, G there was the fact the plaintiff was a forsaken man and that the two witnesses were brought to court to give evidence against that backdrop. Robust common sense warns that it would have taken a witness of exceptional boldness to give objective evidence in an open court under such circumstances. I incline to the view that the H evidence of the two witnesses was a farrago of fanciful figments and shaved truths in the most part. I would therefore, hold that judge was justified to dismiss the accusations of theft that were levelled against the plaintiff.
With regard to the question of torture I am also of the view that the judge was entitled to find as he did. It is not I quite true that he summarily rejected the evidence given and led by the defendants. And it seems to me that the conflicts and disparities to which
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Professor Fimbo alluded, if they were conflicts and disparities at all, were not material, and a court would be naive A if it were to expect the evidence to bear no such discrepancies.
Professor Fimbo would have this Court regard D.W.6., D.W.7 and D.W.8 as independent and credible witnesses. D.W.6 Richard Noah Ng'ombeyapi and D.W.7 Fabiano Mazanguli were, respectively, the chairman of Udongo B and Ipole, while D.W.8 Mrisho Karyube was the ward secretary of Chabutwa of which Ipole and Udongo were parts. These three witnesses denied that plaintiff was subjected to torture. I think, however, that there is some sustenance in Mr Ntabaye's submission that these witnesses being the top leaders in the locality and having C attended one or both meetings had apparent interests of their own to serve.
I find that the plaintiff was actually tortured. No self-respecting court would, in my view, have accepted a confusion obtained by such extreme violence. D
It would not be out of place at this juncture to say a few words about Sungusungu. It was pointed out by Professor Fimbo, with palpable diffidence, citing the people's Militia Laws (Misc. Amendments) Act, 1987 (No. 9/89), but without elaborating, that Sungusungu is an institution of law and order. That is correct. In the scheme E of that Act as read together with the Peoples Militia (Powers of Arrest) Act, 1975 (No.25/75), and the Peoples Militia (Compensation for Death or Injuries)) Act, 1973 (No.27/73), a traditional security group like Sungusungu has been accorded a formal legal status. Effective from June 12, 1989, such a group is a peoples militia and enjoys F the powers rights and benefits conferred on such militia by those legislation. All this is in accordance with the policy of deploying the general public to supplement the established forces in the arduous task of crime control.
There are, however, three observations which may be made about that legal status. The first, which is of G subordinate importance, is that previous to Act No. 9/89 there was no written law governing such security groups although their existence in certain places was well known. The second is that the statutory provisions cited above put members of such groups at par with police constables in relation to powers of arrest and dealing with criminal suspects. The third observation is that the law does not give, and had never given, licence to such groups to H dehumanize people or procure confessions by torture.
I am not one to deny that in certain areas where such groups have been established they have done laudable work in the detection I
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A of crimes, apprehension of criminal elements and preserving and enforcing public order generally. The instant case, however, serves to illustrate all too well the possible and gross exesses that such groups may be tempted to indulge in when they operate outside the normal legal framework. It was imperative for the relevant organs of the B state, therefore, to ensure that these groups operate according to law.
The next point for determination is what kind of conversion was committed by the defendants and whether the trial C judge was right in holding that all the appellants committed the tort. Professor Fimbo submitted that conversion by taking was not pleaded against the defendants. Mr Ntabaye conceded that point, but he was quick to add that for the purpose of the plaint it was not necessary to do so, and I am disposed to accept that view-point.
D But it is plain that even the judge did not specify the kind of conversion that was committed. Professor Fimbo assigned some blame to the advocated who appeared in the High Court for rendering insufficient assistance to the judge, I think with some justification. In actual fact the arguments formulated for this Court by the advocates were E not so fully or carefully formulated for the High Court. And it was clear to me that some of the arguments in this Court had involved considerable research and industry.
Any asportation of goods out of the possession of anyone else, for the use of the defendant or a third person, in exclusion or in defiance of the owner's right, amounts to conversion by taking. In relation to all the defendants, F except the first and second, I share Professor Fimbo's view that there was no trace of evidence that they participated in the taking of the animals. By the plaintiff's own account, the animals were taken by a squad of Sungusungu composed of Kidari and persons other than the defendants.
G In relation to the first and second defendants Professor Fimbo has not quarrelled with the formulation of the judge which comes on page 132 of the record, to wit:
Where a man voluntarily and actively takes part in promoting an unlawful seizure of another's property for the benefit of a H third party, such person is liable in tort as the third party, even if in the end such person should receive no material gain.
The judge was there dealing with Mr Lukwaro's submission that there was no cause of action against the second I defendant. He concluded by finding that there was one. However, as Professor
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Fimbo has correctly pointed out, the judge just stopped there: he did not proceed to pronounce on whether he A considered the second defendant, let alone the first defendant, to have been a party to the taking, and it thus remains for this Court to decide the matter.
After consideration and evaluation of the evidence I have come to the conclusion that there was no cogent B evidence that in taking the animals Kidari and his group were directed or instigated or in any manner induced by the first and second defendants.
I then go to consider conversion by detention. Detention connotes possession. Now, on the pleadings and facts proved the second defendant was not in possession of any of the converted animals. If so, he could not be said to C have committed the wrong. Consequently, in relation to him the appeal should wholly succeed, and I would allow it with costs here and below.
As regards the other appellants there were, as mentioned, admissions that they were given some of the animals that were seized, as follows; first defendant - 3 head of cattle and 2 goats; third defendant - 18 head of cattle which D he received on behalf of and kept for his brother the eleventh defendant; sixth defendant - 8 head of cattle, seventh defendant - 25 head of cattle, and eighth defendant - 9 head of cattle. E
Mr Lukwaro did submit in the High Court that there was no causes of action against the eleventh defendant, on the ground that none of the cattle was found with him. The Judge rejected that submission and in any view properly so. At law a person can be charged with conversion of goods if he had an actual or constructive possession of F them at the time of the alleged conversion. On the facts proved the third and eleventh defendants were joint possession of the 18 head of cattle, the farmer's possession being actual and the letter's constructive.
We were pressed with the contention that the judge erred in failing to consider the issue of identity of the animals G the plaintiff claimed. Professor Fimbo laid great stress on the requirement that in such an action the property claimed must be specified and he relied on three authorities, in particular the old English case of Abington v Lipscomb [1841] 1 QB 776 at page 1330. He sought to draw a parallel between that case and the instant case. H
It seems to be an established rule that in an action of Trevor, the demand must be sufficiently definite and complete, and should not embrace more property than the owner is entitled to recover. It seems to be accepted, however, I that while the plaint must describe the property alleged to be converted with reasonable certainty, in
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A order to appraise the defendant and the court of the property claimed, all that is required is that the property should be described which has much reasonable precision as the nature of the case will permit, and ordinarily a general description should suffice.
B In my opinion the plaintiff's description of the subject matters was in the circumstances quite sufficient and there appears to have been no misapprehension by the defendants throughout as to what the plaintiff was actually claiming. Abington's case does not stand in the way at all. There the defendant's father died seized of certain customary freeholds on which heriots were payable to the plaintiff, as lord of the manor, upon the death of the C tenant. (Heriot is an incident to freehold tenure in England. I is the right of the lord of the manor to the best living beasts of the tenant of the manor dying seised of an estate inheritance and recoverable by seizure or distress. It has a marked tincture of feudalism.) The plaintiff was entitled to 5 such beasts, but overbearing as he apparently was, D he marked 7 claiming all as heriots, and left them in the possession of the defendant who was the owner up to the marking. The plaintiff afterwards demanded the 7 and the excessive demand was met by a flat refusal to give them up. The plaintiff then brought action of Trevor for the beasts.
E Against that action the defendant made a preliminary objection and moved to quash the action, contending that in the circumstances his refusal did not avail the plaintiff a causes of action.
F Denman, C J sustained the objection and nonsuited the plaintiff. His reasons: (a) the demand had reference to a seizure actually made of 7 beasts, when the plaintiff had only a right to seize 5; (b) even supposing that the demand and refusal amounted to a conversion of 5, still it was left uncertain which 5 he lawfully seized, because if he was entitled to the best beasts he should have formed a judgment and exercised the legal option as to which was G the best.
As I see it Abington's case did not lay down any absolute rule that a demand that is too large is by itself always fatal. It seems to me that each individual case should be decided on its own set of facts. And there are, in my H opinion, two points of material distinction between that case and the present one.
There was from the very beginning no dispute whatever that the plaintiff in Abington's case was entitled to only 5 beasts and not the number he claimed in his action. There was a dispute in this case to the number of cattle which I the plaintiff could recover from the defendants. More importantly, the problem in Abington's case was that it was by no means certain which 5 among the 7 the plaintiff
OMAR JJA, RAMADHANI JJA AND MAPIGANO Ag JA
had chosen as the best. As the learned Chief Justice observed, there was no refusal of 5 but only a refusal of 7, for A the defendant had no means of giving 5, because, and more to the point, he had no legal right to select 5, and being unable to do so he was not bound to give up the 7. Obviously there was no question of making such choice in the instant case. B
In conclusion upon this point I would hold that conversion by detention was proven against the first, third, fourth, fifth, sixth, seventh, eighth and eleventh defendants in respect of the animals they said they received at the two meetings.
Finally I recur, as promised, to the order of the judge requiring the judgment-debtors to meet the award jointly and C severally, which meant that the judgment could be executed in full against any one of them. The order has been assailed by the appellants, vide the last ground in their memorandum, as unwarranted.
There is substance in that criticism. In my judgment it cannot be said with confidence, on the materials on record, D that the defendants were joint tortfeasors. All that happened, in my view, was a more concurrence of distinct acts of retention. In fairness to counsel for the respondent I ought to mention that he readily conceded that he defendants were independent tortfeasors. I would allow this ground. That means, in my judgment, the defendants, E namely, the first, third (or eleventh), fourth, fifth, sixth, seventh and eighth defendants are liable separately to the extent of the number of animals each individuals retained, or their pecuniary value. F
There was a short discussions as to whether the assessment of the pecuniary value should have reference to the date of conversion or the date of judgment. I have been unable to find any helpful decision on that subject in this country. In England the authorities that are available to me are not unanimous; the weight of authority, though, is in G favour of the view that the value should be assessed at the date of conversion.
On my part I prefer the view to which Salmond on Torts seems to incline, namely, that if the property increases in value after the date of conversion and if the increase is not due to the act of the defendant but would have occurred H in my case, even had no conversion been committed, as when goods taken or detained have risen in value by reason of the fluctuation of the market, the plaintiff should recover it as special damages resulting from the conversion, in addition to the original value of the property, provided that the plaintiff does not bide his time after conversion so as to make his I
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A demand when the market price is highest. But as always, such damages must be explicitly claimed on the pleadings and strictly proved.
In the present case it is undeniable that the Tanzania shilling has undergone several devaluation's and there has B been a sharp mark-up in the price of almost every marketable item since the time of conversion of the animals. The plaintiff's sticking-point, however is that there was no pleading in that respect, let alone any proof. Accordingly, the pecuniary value of the animals should, in my opinion, be based on their market price at the time of conversion.
C We were informed from the bar that the decree has been executed by the plaintiff in part and some of the defendants' animals attached as follows first defendant Imeri Maleve - 12 head of cattle plus 2 goats: third defendants Andrea Tumbo and his brother the eleventh defendant Kasanga Tumbo - 13 head of cattle: the fifth D defendant Andrea Mgagani - 59 head of cattle; the sixth defendant Matwiga Gaga - 16 head of cattle; the seventh defendant Shija Uganga - 10 head of cattle; and the eighth defendant Yunge Ndaki - 61 head of cattle.
E If that is the case, then, in my opinion, the plaintiff should return 9 head to the first defendant, 8 head to the sixth defendant, and 52 head to the eighth defendant, failing this, to pay the three defendants the pecuniary equivalent thereof at the date of seizure. The fourth, fifth and seventh defendants are liable to pay the plaintiff 9 head, 20 head, and 15 head, respectively, or the pecuniary equivalent thereof at the date of conversion.
F In the ultimate event I would uphold the judgment of the High Court, save as indicated above, and dismiss the appeal. I would make no order as to costs since the appellants have come to this Court in forma pauperis.
Appeal dismissed.
A
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