amos lukinda vs ester petro 2021 tzhc 6438 30 september 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA CIVIL APPEAL NO. 27 OF 2020 (Arising from the Ruling of Chato District Court Civil Case No. 15 of 2019 dated 20/03/2020 Honourable D. D. MLASHANI RM.) AMOS LUKINDA.................................................................... APPELLANT

VERSUS ESTER PETRO.................................................................... RESPONDENT

JUDGMENT Date of last order: 07/09/2021 Date of Judgment: 30/09/2021 F. K. MANYANDA, J. Upon sustaining a preliminary objection on point of law the District Court of Chato (trial Court) struck out a plaint lodged by the Appellant in Civil Case No 15 of 2019. In that Civil Case the Appellant, Amos Lukinda sued the Respondent, Ester Petro, for compensation to the tune of Tshs 72, 000,000/= as general damages for malicious prosecution and false imprisonment. The Respondent filed a preliminary objection in the trial Court on four (4) points of law that:- (i) The p la in t does not disclose a cause o f action. Page 1 of 14 (ii) The su it is incom petent fo r lack o f jurisdiction. (Hi) The su it is incompetent. (iv) The p la in t is incom petent for non- join d er o f parties. The trial court overruled the objection in respect of points one and two of the preliminary objection. However, it sustained the objection in point of the preliminary objection that the suit was incompetent before it. The reason it gave is that the criminal prosecution was not determined in favour of the Appellant who was prosecuted by the Respondent for criminal charges in the District Court but the criminal case was dismissed under section 225(5) of the Criminal Procedure Act, [Cap. 20 R. E 2019] (the CPA) and the Appellant (accused) discharged. It was the reasoning of the trial Court that since

the Appellant could be re-indicted with the same facts, then it cannot be said that the criminal prosecution was terminated in his favour; therefore, the suit was incompetent. The trial Court did not make any finding on the fourth point on the preliminary objection because the third point sufficed to dispose it of. Page 2 of 14 The Appellant got dissatisfied by the ruling of the trial Court, hence the instant appeal which built on four (04) grounds of appeal as follows:- 1. That the Honourable M agistrate erred in law and in fact to adm it the respondent's written statem ent o f defence as the respondent's prelim inary objection which drawn (sic) by the person whom is not an advocate contrary with the law.

2. That he Honourable m agistrate erred in law and in fact fo r nor (sic) declaring that the respondent file d the w ritten statem ent o f defence out o f tim e o f 21 days w ithout leave o f the court.

3. That Honourable m agistrate erred in law and in fact in holding that the accused person has no rig h t to claim the m alicious prosecution or false im prisonm ent if the crim inal case was dism issed fo r non- appearance o f the Republic witness.

4. That the Honourable m agistrate erred in law and fact to decide the m atter in favour o f the respondent w ithout putting into consideration the ruing o f the High Court o f Tanzania a t Mwanza in the case o f Ruth Langeni Mfanga vs Ilem ela M unicipal Council Page 3 of 141 Labour Revision No. 66 o f 2019 which was adduced by the Appellant in that case the Honourable S. M. Rumanyika, J. prohibited to adm it any pleading which is drawn by a person whom is not an advocate. At the hearing, the parties argued their case personally unrepresented. The Appellant argued in support of his appeal that the trial court erred in law and facts for dismissing the civil case he had lodged on reason that the prosecution of the criminal case against him was not finally decided in his favour because it was discharged under section 225(5) of the CPA. His argument is that the case was dismissed for want of prosecution. According to him, the prosecution had no evidence. He added that what is needed to be proved is malice and incarceration, it is not necessary that the case comes to an end. He cited the case of Tanzania Breweries Ltd vs Charles Msuku and Another, Civil Appeal No. 18 of 2000 (unreported) Court of Appeal of Tanzania (CAT) at Dar es Salaam. Page 4 of 14 He also cited the case of Albert Mlilo and Another vs William Jeremia Kasege, Civil Case No. 01 of 2015 (unreported) High

Court Mbeya, he didn't supply a copy. On the other point of appeal, he argued that it was wrong for the Chato District Court to reject the plaint on reason that it was not drawn by a qualified person. He argued that he hired an advocate to draw the plaint, but he filed it himself. To the contrary he argued, it was the Written Statement of Defence which was drawn by an unqualified person, he objected against it but his objection was overruled. It was his views that the trial court was biased. He prayed the appeal to be heard de novo On her side, Ester Petro had nothing useful to assit the Court, she simply said as follows:- " sina mambo mengi, m ajibu yako m bele yako ninaom ba shauri litupiliw e m bali kwa gharam a." Literally means she had no many things as the answer are before this court and prayed the appeal to be dismissed with costs. Page 5 of 14 Let me start with ground three of the appeal. The issue in this ground of the appeal is whether the District Court was justified in law to strike out the plaint on preliminary objection basing on ground that the prosecution of the criminal case was not terminated in his favour. I have gone through the ruling of the District Court of Chato in Civil Case No. 15 of 2019 dated 20/03/2020 and found that it struck out the plaint. The reason for taking this decision is stated at page 7 of the typed ruling as follows: - "On m y hum ber

option (sic) I think, m alicious prosecution to stand as a cause o f action, the p la in tiff should be prosecuted in crim inal trials, case fu ll determ ined on m erits and accused declared innocent and acquitted, a case dism issed under section 225(5) o f the CPA, Cap. 20, fo r want o f prosecution cannot be basis o f m alicious prosecutions. I say so because a person can be re­ arrested a t any tim e after being (sic) discharged under section 225(5) o f the CPA. This m eans the p la in t who (sic) has no judgm ent in h is favour, has no locus to sue fo r m alicious prosecution." In the plaint the Appellant averred in paragraph 3 that:- "The Defendant on or about 14/03/2017 unlaw fully reported to the Chato Police Station false inform ation Page 6 of 14 against the P la in tiff that on 13/03/2017 a t about 20.00 hours a t Chato Village within Chato D istrict in Geita Region the p la in tiff d id threaten to k ill Esther Petro (D efendant)." In paragraph 6 of the plaint it was averred as follows:- "6. That, the defendant false inform ation to the Chato Police Station caused the p la in tiff to be arrested and taken to the Chato D istrict Court and prohibited to be bailed and to be thrown into prison custody since on 21/03/2017 up to 17/05/2017(56 days in im prisonm ent." Similarly in paragraph 8 of the Plaint it was stated as follows:- "That, on 27/07/2018, the Hon. M

agistrate o f Chato D istrict Court discharged the Appellant fo r non- appearance o f prosecution witnesses and held that this is the second time, Public Prosecutor claim s not to have witnesses, that trend in m y views show s that the prosecution is no longer interested with their case on that ground I hereby discharge the accused the prosecution is no longer interested with their case. On that ground I hereby discharge the accused." I have reproduced in extension the relevant paragraphs in the plaint in order to reveal what was averred to by the Plaintiff. As it can Page 7 of 14 be gleaned from the quoted paragraphs of the plaint, it is obvious that the criminal charge was dismissed and the plaintiff discharged. Paragraph 8 of the plaint did not mention the provisions of the law under which the charge was so dismissed. However, annexure to the same paragraph 8 marked 'F' which is the proceedings in the criminal case concerned reveal that the charge was dismissed under section 225(5) of the Criminal Procedure Act, [Cap. 20 R. E. 2019]. That provision of the law provides powers to a trial court to dismiss a charge and discharge the accused where the prosecution is unable to proceed with the hearing the case where the case is adjourned for aggregate of 60 days and no certificate for adjournment by the prosecution is filed in Court. However, the same provision provides that such

discharge is not a bar to a subsequent charge being brought against the accused for the same offence. Therefore, it goes without saying that pleadings sufficiently revealed that the prosecution was terminated under section 225(5) of the CPA. Page 8 of 14 The Appellant argued that the dismissal of the charges and ultimately his discharge under section 225(5) of the CPA amounted to termination of the criminal prosecution is his favour. I have read the case of Tanzania Breweries Ltd vs. Charles Msuku and Another (supra) Civil Appeal No. 18 of 2000 (unreported), CAT at DSM and found that the same is distinguishable with the current matter. In that case, the appellant who was the defendant, accepted liability in a consent judgement, therefore, there was no issue of re-indictment. In that case, the appellant who was the defendant, accepted liability in a consent judgement, therefore, there was no issue of re-indictment. Similarly, the case of Albert Mlilo and Another vs. William Jeremia Kasege (supra) decided by this Court at Mbeya, is distinguishable in that the plaintiff was arrested and detained in police custody but not prosecuted in a court of law, the tort wrong was that of false imprisonment where termination of the criminal proceedings in favour of the accused (plaintiff) was not among the required element. In the circumstances of this matter and the law, can it be said that

the prosecution of the criminal case, for purposes of a tort for malicious prosecution, was terminated in favour of the Plaintiff, in the instant Page 9 of 14 matter, the Appellant? The answer to this question is in negative as I demonstrate hereunder. First, termination of the criminal prosecution under section 225(5) is when the court is ready to proceed with hearing of the case but the prosecution, in absence of any certificate for adjournment, fails. It follows therefore, the case becomes terminated before it is decided to its merits. Second, the prosecution still retains its right to re-indict the Plaintiff (Appellant) and there is no time limit. The word 'prosecution' is defined in the dictionary called Black's Law Dictionary 8th Edition, by Bryan Garner, and at page 1416, to mean: - "Crim inal proceedings in which an accused person is trie d ." The word 'trial' under the same Black's Law Dictionary, (supra) at page 1735, is defined to mean: - "A form al ju d icia l exam ination o f evidence and determ ination o f legal claim s in an adversary proceeding." Page 10 of 14 From the above definitions of the words "prosecution" and "trial," in my considered opinion, for the prosecution to have finally terminated in favour of the Plaintiff, there must be a formal judicial examination of evidence and determination of legal claims in an adversary proceeding. In other words, the

criminal case must be tried to its finality. I am not alone on this position of the law, my Brother, Hon. Kibela, J. as he then was, when he was confronted with a situation akin to this one but dealing with section 98(a) of the CPA which provides for termination of criminal proceedings with option to re-indictment of the accused in the case of Masunga Saguda vs Bariadi District Council (DC) Civil Appeal No. 25 of 2016 (unreported) stated as follows: - "And where the case is/w as withdrawn under section 98(a) o f the Crim inal Procedure Act, (Cap. 20 R. £ 2002), certainly this provision is used to rem ove from the court a charge that is defective with a view o f instituting a proper charge but which m ust be invoked before the accused is given an opportunity to defend h is case. From the above therefore, as the case against the accused was withdrawn under 98(a) o f the Crim inal Procedure A ct (supra) as rig h tly adm itted by both sides and the tria l records reveal the same, thus, the prosecution o f the accused/appellant was not heard and fin a lly decided by the tria l court as there had been no exam ination o f evidence and determ ination o f legal Page 11 of 14 claim s reached. A lb eit the accused was discharged, however, as rig htly subm itted by Mr. Kibasi, learned advocate, the appellant m ay be charged any tim e fo r the same charge which had been withdrawn under

section 98 (a) o f the Crim inal Procedure Act, which is not a bar to further prosecution upon the same charge.......Therefore, under the circum stances, I differ with Mr. Ng'w igulila, learned counsel that fo r a case to be withdrawn under section 98 (a) o f the Crim inal Procedure Act, (supra) and the accused discharged, then the crim inal prosecution did end in favour o f the plaintiff. This is because the prosecution is s till open and never ended as no ju d icia l exam ination o f evidence and determ ination o f legal claim s was done as w ell as no acquittal or conviction was reached." [Em phasis added] In the result this Court finds that the trial court was legally justified to hold that a discharge under section 225(5) of the CPA which does not bar further prosecution on the same facts, did not amount to termination of the criminal prosecution in favour of the Appellant's favour. It is trite law that for the torts of malicious prosecutions to succeed five elements have to be cumulatively proved namely: - Page 12 of 14 (i) That, the plaintiff was prosecuted (ii)That, the prosecution ended in his favour (iii) The defendant acted maliciously (iv) The, defendant acted without reasonable and probable cause; and (v) The Plaintiff suffered damages. There is a plethora of authorities on this position of the law. See for example the cases of Hosea Lalata v. Gibson Zumba

Mwasote [1980] TLR 154 which was followed with approval by the Court of Appeal in many other cases including the recent case ofShadrack Balinago vs Fikiri Mohamed @ Hamza and 2 Others, Civil Appeal No. 223 of 2017 (unreported), Others are: - Jeremia Kamana vs. Bugomola Kayanda (1983) TLR 123, Masunga Saguda vs. Bariadi District Council, (DC) Civil Appeal No. 25 of 2016, Yonah Ngassa vs. Makoye Ngassa, [2006] TLR 213, and the case of Ahmed Chilambo vs. Murrays & Roberts Contractors (T) Ltd, Civil Case No.44 of 2005 (unreported), to mention a few. In the latter case, it was stated as follows: - "In the lack o f an acquittal o f the p la in tiff he cannot successfully urge that he was m aliciously prosecuted. For Page 13 of 14 tort o f m alicious prosecution to stand, there m ust be facts showing that the prosecution ended in favour o f the p la in tiff and short o f those facts like in this case, it is d ifficu lt to say that there are facts constituting a to rt o f m alicious prosecution. Likewise, in order fo r the inform ation to be said to be false, it m ust lead to an acquittal o f the p la in tiff." It follows therefore, that lack of the element of termination of the criminal prosecution in favour of the plaintiff, been one of the vital elements of the tort of malicious prosecution, rendered the suit by the Plaintiff against the Respondent unmaintainable, been filed prematurely. This ground disposes of the appeal, I don't see any need of going into the nitty gritty of the other grounds of appeal. In the upshot, I do hereby dismiss the appeal in its entirety with costs. It is so ordered. Page 14 of 14