final AUGUSTINO KISAKISA MAKOYI Tanzliii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOSHI SUB-REGISTRY AT MOSHI CIVIL APPEAL NO. 13751 OF 2024 (Appeal from the Judgment of the District Court of Moshi at Moshi dated 16th May, 2024 in Civil Case no. 8 of 2023) AUGUSTINO KISAKISA MAKOYI……….………………..….……APPELLANT VERSUS THERESIA ENYASI MALLYA………………...……...………….RESPONDENT JUDGMENT 19th August & 5th September, 2024. A.P. KILIMI, J. The appellant AUGUSTINO KISAKISA MAKOYI sued the respondent one THERESIA ENYASI MALLYA at the District Court of Moshi “trial court” in Civil Case No. 8 of 2023 for malicious prosecution claiming the following reliefs; An order for payment of Tsh. 5,000,000/= (Tanzania Shillings five million) as special damages, an order for payment of Tshs. 50,000,000/= (Tanzania Shillings fifty million), an order for payment of 12% monthly interest from the date plaintiff was arrested to the date of his acquittal, costs of the suit and any other orders and relief the trial court may deem fit and just to grant. The case was heard on merit, the trial court decided in favour of the respondent for the reasons stated therein that elements amounting to malicious prosecution was not proved as the prosecution of the 1 appellant was reasonable and with a probable cause and not actuated by malice or ill-will from the respondent. Dissatisfied with the trial court findings, the appellant is in this court with the following grounds of appeal; First, that the trial Magistrate erred in law and fact in holding that the plaintiff has failed to prove the claims of malicious prosecution; Second, that the trial Magistrate erred in law and fact by failing to consider that the appellant herein was maliciously prosecuted and suffered damages; Third, that the trial magistrate erred in law and fact by failing to properly analyze the evidence placed before the court and hence arrived at erroneous decision; and Fourth, that judgment of the honorable trial magistrate lacks clear legal reasoning. Before embarking to this appeal on merit, I find apposite to narrate, albeit in briefly, the background of the matter leading to this appeal. It was at the District Court of Moshi in Criminal Case No. 225 of 2022, the appellant herein was charged by the Republic with two counts, armed robbery and gang rape. After a full trial, the trial court observed that the prosecution prosecuted under minimum standard as required by the law. Consequently, acquitted the accused person (herein appellant) and reasoned that the prosecution side failed to prosecute the case beyond reasonable doubt as the law requires. Thus, the appellant 2 was found not guilty and was acquitted for all counts. Subsequently, the appellant moved at the trial court claiming damages for malicious prosecution however he lost the case as alluded above, hence this appeal. When this was placed before me for hearing, both parties appeared in person unrepresented and with the leave of this court it was agreed the same be disposed by way of written submissions and both complied with the scheduled orders. The appellant commenced by arguing grounds number 1 and 2 jointly and submitted that he was arrested and charged with two counts which were not proved. He added that he was arrested and remanded in a lockup for 10 days and he was then taken to court on 9th June 2022 and remanded in custody till on 27/2/2023 when he was finally acquitted. He stated that he had suffered anguish and disturbance for the crime he did not commit. He further submitted that the trial magistrate failed to see that his acquittal was a proof that he was maliciously prosecuted by the respondent as there was no appeal preferred to set aside the said decision. Also joining grounds number 3 and 4, the appellant submitted that the trial magistrate failed to analyze evidence of both parties under the principle of balance of probabilities where the appellant tendered strong 3 evidence than the respondent as per section 110, 111 and 112 of the Evidence Act [Cap 6 R.E 2019]. He submitted that he was only prosecuted by the respondent as they are brother and sister-in-law and she aimed to embarrass him as there were misunderstandings between them as relatives, thus prayed for his appeal to be allowed with costs and the trial court decision be nullified. Rebutting the above grounds, the respondent contended that the appellant submissions were based on the acquittal orders to prove that he was maliciously prosecuted. The respondent replied that proving malicious prosecution does not hinge on acquittal orders rather the claimant has to prove that he was prosecuted, the proceedings ended in his favor, the defendant instituted the prosecution maliciously and that there were no reasonable and probable cause. The respondent further maintained that, the trial court at page 5-9 of its impugned judgment correctly analyzed the elements for malicious prosecution by referring to different decisions. Responding to ground number 2, the respondent stated that no errors were occasioned in analyzing the evidence, and that the elements in proving malicious prosecution were not met. Having considered the grounds of appeal and the evidence adduced at the trial court plus the persuasive submissions above. I find 4 convenient to start by highlighting the duty of this court on appeal like this before me; This being the first appellate court, it has a duty to re- evaluate the evidence as if it was the trial court. In Hassan Mzee Mfaume vs. The Republic [1981] T.L.R. 167 the Court held that; "(ii) A judge on first appeal should re- appraise the evidence because an appeal is in effect a rehearing of the case." Therefore, in expound the above, the jurisdiction of the first appellate court while hearing the first appeal is very wide like that of the trial court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first appellate court to appreciate the entire evidence and may come to conclusion different from that of the trial court. (See also Union of India vs. K. V. Lakshman and Others, AIR 2016 SC 3139, and Santosh Hazari vs. Puru-Sholtom Tiwari (Deceased) by L. Rs. (2001) 3 SCC 179, at pages 188 - 189 both of Supreme Court of India). Having closely examined the grounds of appeal, essential the first ground carries the gist of this appeal and this is because the appellant claims are based on proving malicious prosecution. Thus, commencing with this ground the issue for determination is whether the claims for malicious prosecution were proved by the appellant at the trial court. 5 It is trite Law that in order for a suit for damages for malicious prosecution to succeed, the plaintiff has to prove the following ingredients; First, that, the defendant prosecuted the plaintiff; Second; that the criminal prosecution has been terminated in the plaintiff's favour; Third; that the defendant acted without reasonable and probable cause; Fourth, that the defendant acted maliciously without proper motive or that the prosecution initiated by the defendant was actuated by malice; and Fifth, that, the plaintiff has suffered some damages recognized by Law. (See Hosia Lalata vs. Gibson Zumba Mwasote [1980] TLR 154; Masunga Saguda vs Bariadi District Council (Civil Appeal 25 of 2016) [2019] TZHC 2101 (TANZLII); Yonah Ngassa vs. Makoye Ngassa (2006) T.L.R. 213 and Jeremia Kamama vs. Bugomola Mayandi (1983) T.L.R.123 to mention few. As per the trial court records, it was the appellant contention that he was maliciously prosecuted by the respondent in a criminal case No. 225 of 2022 where he was acquitted from all charges. According to the typed proceeding of that criminal case at page 9 and 10 what gave rise to that criminal case against the appellant was as follows; the respondent hereinabove stated she was invaded by four young men, 6 while one of them threatened her with a knife. Then they stole her money Tsh. 380,000/= and other goods she had in possession. She also said each of them raped her. Next morning she reported the incident at police station, later she was called by police officers to identify the culprits, she went at Soweto police station and thereat she found two accused persons arrested, one of them was the appellant. Then she said she knew the appellant name after he was arrested. After hearing other witnesses and defence case, the appellant was found not guilty, thus acquitted for the two counts charged forthwith. From the above evidence in the said criminal case, there is no dispute by reporting the matter at police; it is the respondent who initiated the prosecution, second the facts that the appellant was acquitted for the offences charged. I am settled the first two elements stated above are proved. The next element in proving malicious prosecution is whether the respondent acted without reasonable and probable cause. As per the trial court electronic proceedings extracted from proceeding available in Electronic Case Management System (ECMS), I find necessary to reproduce part of the respondent evidence for reference, she said; 7 “On 29/10/2021 around 8pm. I was coming from my daily duties. On my way back home, I met four men whom I identified. IMMA pointed a knife to me. The accused person chocked my neck while others assaulted me by using hands. I was assaulted on various parts of my body and face. The took away Tshs 380,000/=, 3 liters of cooking oil, 1kg of meat, 1kg of sugar and two pairs of school uniforms. They also raped me. One unknown person appeared and found me down. He asked where my house was and I directed him by pointing a finger. I was taken to the police station where I was issued with the PF3 and thereafter to the hospital. I was examined and the suspects were arrested. The 1st accused person was AUGUSTINO KISAKISA MAKOI, the 2nd accused was ISDORY JEROME SHIO. ISDORI escaped while he was on police bail. AUGUSTINO was therefore arraigned before Moshi District court”. And when she was crossed examined by the appellant counsel, the respondent said she knows Kisakisa (appellant) as an accused who robbed and raped her. I have considered the above evidence, which in fact reflect what she testified at the criminal court against the appellant as alluded above. 8 From the above I cannot hesitate to say that it is the respondent’s act of reporting the matter at the said police station caused the police to mount the investigation and later the appellant was arrested and prosecuted. In the premises I think it does not matter whether she mentioned him immediately after the incident or identified him later, rather it was through police investigation which led to the appellant arrest. In my view it suffices for the apprehension of the appellant after being implicated therein. However, there is no dispute the said ordeal happened to the respondent, this is because the same was not disputed by the appellant, taking regard the respondent was not cross examined by the appellant at the trial court after she testified implicating the appellant as extract quoted above. It is trite law that failure to cross examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness evidence. (See George Maili Kemboge vs. Republic Criminal Appeal No. 327 of 2013, CAT Mwanza registry (unreported). Therefore, in my opinion the above criminal acts were enough for the defendant and prosecution machinery to believes that there is reasonable and probable cause for the prosecution, thus the same justified the appellant’s prosecution. Contrary to that, the burden shift to the appellant to prove the absence of reasonable and probable cause 9 in his prosecution, which after scrutiny of his evidence was not done to the balance of probabilities. (See James Funke Ngwagilo v. Attorney General, [2004] TLR 161. Under the above circumstances, the fact that the appellant was acquitted for the offences charged cannot justify that the respondent acted without reasonable and probable cause. Thus, it was his duty to prove to the contrary. For the foregoing analysis, I am settled as the trial court precisely answered in this element, I also concede the above stated facts proved that the respondent acted with reasonable and probable cause to initiate the criminal prosecution against the appellant. The next point to be considered as essential element to prove malicious prosecution is whether the act of the respondent was actuated by malice. In James Funke Ngwagilo vs. Attorney General, [2004] TLR 161, the Court defined malice and had this to say; "Malice in the context of malicious prosecution is an intent to use the legal process for some other than its legally appointed and appropriate purpose. The appellant could prove malice by showing for instance, that the prosecution did not honestly believe in the case w hich they w ere m ak ing, that there w as no evidence at all upon w hich a 10 reasonable tribunal could convict, that the prosecution w as m ounted for a w rong m otive and show that m otive.” [Emphasis added] Later in Masound Issa Sungura & Others vs. Security Group (T) Limited & another (Civil Appeal No. 176 of 2018) 2021 TZCA 718 (TANZLII) the court at page 12 expounding the malice or an ill will in malicious prosecution had this to say; “It follows therefore that, in an action for malicious prosecution, the plaintiff is saddled w ith a duty to prove to the satisfaction of the court, am ong other things, that the defendant had another m otive other than that of bringing an offender to justice.” [Emphasis added]. I have reviewed the evidence on the record in order to gauge how and why the prosecution was mounted against the appellant at the trial court, as alluded above, the fact that the respondent reported the criminal incident at Police station, thereafter appellant was arrested after investigation by police, in my view that stands to be the basis of his 11 apprehension and being prosecuted. And I repeat also in this element, the fact that the appellant was acquitted for the offences charged cannot justify that the respondent acted with malice. Taking regard as depicted above there was no proof that the respondent set the legal machinery against the appellant without reasonable and probable cause. Be that as it may, looking at the trial court records; the appellant did not prove the ill motive of the respondent in prosecuting him. It is a cardinal principle of the law that in civil cases, the burden of proof lies on the plaintiff and the standard of proof is on the balance of probabilities. This endures that he who alleges must prove as indicated under section 112 of the Law of Evidence Act, Cap 6 [R.E. 2022], which provides that: “The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact shall lie on any other person”. To add more in Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama [2021] TZCA 699 (TANZLII) at page 14 the court was stated that; “It is again elementary law that the burden of proof never shifts to the adverse party until the party on whom onus lies 12 discharges his burden and that the burden of proof is not diluted on account of the weakness of the opposite party's case.” (See also the cases of Attorney General and two others vs. Eligi Edward Massawe and Others, Civil Appeal No. 86 of 2002 and Godfrey Sayi vs. Anna Siame as Legal Representative of the late Mary Mndolwa, Civil Appeal No. 114 of 2012 (Both unreported). In my scrutiny of the records, the testimony of the appellant in proving his case as extracted form ECMS reveals what he endeavored to prove, and for purpose of reference I reproduce hereunder; “After being accused of raping her, I was arrested and taken to the police. At the police, the investigation was conducted, I insisted for the case to be brought in court. The case was heard while I was in custody. I was also accused of robbing THERESIA. After a full trial, I was found not guilty and thereafter acquitted by the trial court. I have a proof that the case was heard and I was found not guilty through the court’s proceedings and the judgment.” Then after saying the above, the appellant tendered the Court’s proceeding and judgment which were admitted and marked as “Exhibit P1” collectively. Therefore, I have considered the above testimony, I am 13 satisfied the appellant did not address on the element of malice on part of the respondent in respect to his prosecution. Nevertheless, the fact that he proved that he was acquitted as said above cannot be taken as reasonable ground for proving malice on part of the respondent. Therefore, indeed, there was no evidence on which the trial magistrate could have come to that conclusion the appellant claimed. Therefore, I am settled the appellant was rightly denied his claims due to his failure to prove his case to the required standard of the law. Thus, it is my considered view the trial court evaluated evidence properly and hence arrived at justified decision, the same is reflected at page 8 of the typed judgment when the learned Senior Resident Magistrate observed that; “From the evidence on record there is no where it is shown that the plaintiff prosecution was actuated by ill-will or improper motives. No evidence was paraded to substantiate that the defendant’s acts were malicious. The burden of proving there was malice was therefore vested on the respondent” Having observed as above, accordingly, I agree with the holding of the trial court that the claim for malicious prosecution was not proved. Consequently, I find the first and third grounds of appeal devoid of merit 14 hence dismissed. Thus, in my view, determination on the first and third grounds of appeal, suffice to dispose of this appeal and find no need to consider and determine the remaining grounds of appeal. Hence, this appeal is devoid of merit and is hereby dismissed in its entirety. In the circumstances no order as to costs granted. It is so ordered. DATED at MOSHI this 5th day of September, 2024. X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 5th day of September, 2024 in the presence of both appellant and respondent. Sgd; A. P. KILIMI JUDGE 5/09/2024 Court: Right of Appeal explained. Sgd; A. P. KILIMI JUDGE 5/09/2024 15