KAZUNGU LUSHINGE v JUAKALI DEGULLA 1986 TLR 98 (HC)

 KAZUNGU LUSHINGE v JUAKALI DEGULLA 1986 TLR 98 (HC)

Court High Court of Tanzania - Mwanza

Judge Mushi J

B

September 21, 1985.

(PC) CIVIL APPEAL 38 OF 1982

Flynote

Customary Law - Compensation under customary law - Whether a parent is under an obligation

to settle the debts of his adult independent son - Sukuma customary law.

Customary Law - Repugnancy to natural justice and public policy - Custom requiring a parent to

settle the debts of his adult C independent son - Whether just and in accord with public policy.

-Headnote

The respondent had obtained judgment against the appellant's son. Accordingly, the latter was

required to pay 30 bag D s of millet or its equivalent value in money. In settlement of the

judgment debt the respondent applied to court for the attachment of the appellant's cattle. The

court allowed the application on the basis of a custom said to exist among the Sukuma that a

father could be required to settle the debts of his son. Dissatisfied, the appellant appealed to the

High Court. E

Held: (i) Before the court applies any customary law, it must first be proved by adducing

evidence that such a custom exists and is practiced in the particular area and by the community

concerned; in this case no evidence was adduced to F show the existence of the custom

whereby a parent is bound to settle the debts of his adult independent son;

(ii) any custom whereby a person is punished or is made to part with his property on

account of the independent acts of another adult person is contrary to the principles of natural

justice which must override any such custom; G

(iii) the custom alleged in this case also cannot stand for being contrary to public policy

which requires every adult to live on his own sweat and to be accountable and responsible for

his actions.

Case Information

Appeal allowed H

Cases referred to:

1 . Meta Tebera v Isakwe Rongoya, [1967] H.C.D.119

I 2. Masero Mwita v Rioba Masero, [1968] H.C.D. 199

3. Mariba Wanyangi v Romara, [1977] L.R.T.7

1986 TLR p99

MUSHI J

A 4. Rashid Neyura v Athumani Mayunga, High Court at Mwanza, (PC) Ci v App. No.

88/1982 (unreported)

5. Gwao bin Kilimo v Kisunda bin Ifuti [1938] 1 TLR (R) 403.

[zJDz]Judgment

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 G wake 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

1986 TLR p100

MUSHI J

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

1986 TLR p101

MUSHI J

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

1986 TLR p102

MUSHI J

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:

1986 TLR p103

MUSHI J

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

1986 TLR p104

A