20160428 TZHC Mwanza

IN THE .HIGH COURT OF TANZANIA AT MWANZA REGISTRY HC. CIVIL APPEAL NO. 73 OF 2014 (Arising from the decision of Nyamagana District Court in Civil Case No. 34 of 2013) HAMAD ABDALLAH ____________________ :., __________________ APPELLANT VERSUS KISE ISSA ----------------------------------------------- RESPONDENT JUDGEMENT Ebrahim, J.: The appellant Hamad· Abdallah was sued by the respondent at the District Court of Nyamagana for malicious prosecution and was accordingly ordered to pay the respondent Tshs. Two Million shillings only being general damages and seven percent interest at court's rate from the date of judgement to the final payment of the decretal sum as well as costs of the suit-Aggrieved by the decision of the District Court, he has lodged an appeal to this court. The brief facts of the case are that, the appellant reported a matter at the police that the respondent had assaulted him in the morning of 07.12.2010. On 09.12.2010. at 0800hrs, the respondent was arrested by the police who were accompanied by the appellant and he was_ detained up to 1600hrs in the evening. On 10.12.2010, the respondent was taken to court charged with the off€nce of assaulting the defendant. Eventuaiiy the l/ .· . . . . · · ~ matter was decided in respondent's favour on 6th April 2011. Being - v aggrieved by the conduct of the appellant, the r~spondent filed a civil case at Nyamagana District Court claiming that the appellant has defamed him and his image to the society has been tarnished as he is now seen as a difficult person. He also claimed that following the time that he lost for attending a case, his business suffered hence he ·should be ·paid _compensation of Tshs. 7,000,000/-. The appellant denied the claim and told the court that the respondent attacked him on 07.12.2010 at 0700hrs. He called for help and neighbors. He reported the matter to the police where he was given PF3 and went to be treated at the hospital. He called one witness, DW2, his father who told the court that he w?s awakened by the shouting coming behind his house and when he went out he found the respondent assaulting the appellant. He also told the court that there is a long standing beef between them and the respondent on the boun·daries for 18 years now. Upon hearing the evidence of both parties, the trial Magistrate was convinced that the appellant maliciously -prosecuted the respondent and entered judgement in favour of the plaintiff. The appellant was aggrieved by the decision, hence.this appeal. The appellant has raised four grounds of _appeal that: 1. That, the trial magistrate erred in Law and fact by not considering that it was the police who arrested the plaintiff at Igogo station after_ being all~ged to have committed an offence of assault. 2. That, the trial magistrate erred in law an0 fact by· stating that the Defendant ha no ·reasonable cause to report the matter at the police 2 3. That, the trial magistrate erred in law and fact by stating that the .plaintiff was maliciously prosecuted while there was no even a single element of the tort of malicious prosecution that was proved before .the court . . 4. That, the trial magistrate erred in law and fact by entertaining a case. basing on unanimous evidence that the plaintiff suffered a loss on his business while in real sense he does not conduct any business. At the hearing of the appeal, the appellant who appeared in person, unrepresented, erred the trial Magistrate ·for seeing that it was the appellant who prosecuted the respondent and that there was no reasonable cause to. report the matter while actually he was assaulted by the police and given PF3 for treatment. The appellant further submitted that, it is not true that the case was planted against the respondent as there was probable cause. He submitted further that, there was no proof that the respondent could generate such income, .hence it was wrong for the trial magistrate to decide that he suffered loss. He thus prayed for this Court to reverse the decision of the trial court and allow the appeal with costs. The respondent was represented by Mr. Katemi, learned advocated, who ~ resisted the appeal~~at lt,~A the trial magistrate was satisfied that 1 the appellant had no probable cause to file a case against the respondent since he was the one who reported the matter to the police a·nd had ill will against the respondent. He explained that police were merely doing their job of arresting ~ villain where there is a complaint. V FurUJer, it was not proved that the appellant had a PF3, hence cannot convince the court {j . ' the same happened. Mr. Katemi submitted also that the appellant has not ·v shown the court how the magistrate was biased. He was therefore of the opinion that the respondent proved the element of malicious prosecution 1 and what was awarded as damages was within the discretion of the trial ·1 .j , magistrate. He prayed for the appeal to be dismissed with costs . ; In brief rejoinder, the appellant ·countered the argument that he was not assaulted and that he did not tender PF3 in court as an exhibit. He further challenged the fact that Kise did not bring any document in court to confirm that he was detained for eight hours nor did he substantiate his claim for damages. This is the first appe·a1. That being the case therefore, this Court can visit the evidence on record and have its own views and decision thereon. This position was stated in the case of Japan International Cooperation Agency {JICA) V Khaki Complex Limited, Civil Appeal No 107 of 2004(unreported) while borrowing the principle used in the case of Peters v Sunday Post Limited ( 1958) EA 424 where Sir Kenneth O'Connor, P. of the then Court of Appeal_ for Eastern Africa after considering Watt v Thomas (1947) AC 484 stated at page 429 - ''It is a strong thing. for an appellate court to differ from the finding on a question of fac~ of the judge who tried the case/ and who has had the advantage of seeing and hearing the witnesses. An appellate court has indee~ jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which _should be exercised with caution: it is not enough that the appellant court itself have come to a different conclusion': 4 .,l ! In addressing this appeal, I intend to do just the same and I shall v address the grounds of appeal in seriatim. The matter in this case is on malicious prosecution. It is an established principle of the law that for the tort of malicious prosecution to starid, plaintiff must establish four elements namely: i. That the plaintiff was prosecuted by the defendant; ii. That the prosecution terminated in plaintiff's favour; iii. That it was without reasonable and probable cause; and iv. That it was malicious The above elements were _laid down by Lugakingira J (as he then - ~ was) in the case of Edward Celestine and Others V Deogratias ~Paulo [1982] TLR 347, (HC) Fitting the above elements to our present case, it is undisputed that, it was the appellant who reported the assault to the police that led to the prosecution of the respondent. Chipeta J ( as he then was) in the case of Jeremiah Kamama V Bugomola Mayandi, [1983]TLR 123, observed as fallows: · "The first question that arises/ therefore/ is when one is said to be a "prosecutor// for the purpose of a suit for damages for malicious prosecution? In my opinion/ a person becomes a prosecutor in his regard when he takes steps with the view to setting in motion legal processes for the eventual prosecution of a person whom he alleges has committed a crime. For instance/ if A tells the police. that B has stolen A s shirt and as a result that Bis arrested ?Jnd charged with the offence of the{l A w.· 5 1,,._ 't .l be said to have set in motion B's prosecution. A1 therefore/ will be said to ·1 ·0 ' be a prosecutor in a suit for damages for malicious prosecution,✓ ! - . Applying the said position to our instant case, there is .evidence in records that; the respondent was prosecuted in Court of law and later acquitted following the report made by the appellant to the police. Without wasting much time then, the appellant cannot distant himself with the prosecution of· the appellant as per his complaint on the· first ground of appeal that ·it was the police who arrested the respondent. The said arrest and subsequent charge in court were instigated by the appellant. I therefore find that the first ground of appeal is devoid of merit and dismiss it. The appellant has complained in ground two and three of the appeal that the trial magistrate erred in law by stating . that the Defendant/appellant had no reasonable cause to report the matter at the police and that the respondent was maliciously prosecuted. I have dispassionately gone through the records of proceedings at the trial court. PW1, Kise Issa .(Respondent) told the court that . he was· arrested on 09.12.2010 around 0800 hrs at his job and later charged with . the offence that he assaulted the appellant. He claimed that he was defamed and ridiculed by the society and also that he claimed for damages amounting to Tshs. 7,000,000/-, (say Tshs. seven million)'. The appellant, who testified as DWl at the trial, evidenced that the respondent attacked him on 07;12.2010 around 0700hrs when. he was cleaning behind his . . . house. He reported the matter to the police and \/!!as given PF3 and went to be treated in hospital. DW2, one Abdallah Abeid testified ~ appellant that he witnessed the respondent· assaulting the appellant after 0 hearing a shout for help from behind the house. Upon being cross examined he confirmed that the appellant filed a case against the respondent for assaulting him. With the evidence adduced in the civil case, would it suffice to say that the act of the appellant of reporting the matter to the police was ·maliciously done and there was no probable cause? I don't think so and I . . . . . i . . will explain my reasoni, <}---------- The trial magistrate based his decision that there was no probable cause for the appellant to report the matter to the police because DW2 had . evidenced that there was animosity between them and the respondent. I don't think that is correct. The fact that there is animosity between parties does not preclude or act as malice for another person to report a wrong doing done to him. There is ample evidence that the appellant was assaulted by the respondent. The evidence of DW1 was supported by the evidence of DW2. The respondent has not negated anywhere in the cross examination in the trial that he did not assault the appellant. I wonder where the trial magistrate derived his assumption that the case was fabricated without evidence to suggest the same. The respondent had a . duty to prove that he did not assau·lt the appellant of which I do not see it anywhere in the trial. One may say that the mere fact that the respondent was acquitted at the criminal court suggests that he was prosecuted with · malice and there was no probable cause. That is not true. Lugakingira J, in Edward Celestine and Others (supra), in his-wisdom of which I fully subscribe to had this to sa'c, 7 . 'Wevertheless, the argument provides the opportunity to revert to an important matter, that is1 the relevance of an existing Judgement in a previous criminal proceedings. The law as it stands today, thanks to the Judicial System Review Commission, is that a final judgement_ in a criminal proceedings is relevant where it declares any person to be guilty of a criminal offence and in that respect it is conclusive evidence that the person so convicted was guilty of that offence. But where there is an acquittal as the case herein, the Judgement in a criminal proceedings is not, in a civil suit, evidence of innocence. That is a question which the civil court has to determine independently. Such a Judgement in an action for malicious prosecution may be evidence only for resolving the question, ifit arises, .whether the plaintiff was prosecuted by the defendant and whether the prosecution terminated in his favour. These are factors for founding a cause for action, but the acquittal as such is treated as a mere opinion'~ Lukangira, J (as he then was) expounded the position further by visiting variousdecisions on the matter. He cited with approval the case of Kondo V Mwajabu Juma [1972] HCD no. 236 where Mnzavas, J (as he then was) held that: "... the fact that the appellant was acquitted on the charge of assault does not necessarily mean that he did not assault the '.espondent. He may have done so but there may have been no sufficient evidence to prove beyond reasonable doubt that he did it, hence the acquittal. The appellant cannot, therefore rely on the acquittal as a basis of his argument in this civil case because the burden of proof in criminal case is totally different from that .in a civil case. Evidence that may fall to support a criminal charge '!'ay be quite adequate to prove a civil actio ✓, 8 \ . Corning to our instant case, the respondent have not proved . . anywhere in the trial that he did not assault the appellant.- Much as he was \..J acquitted at the criminal case, he had the duty to prove his case in a civil case on balance of probability of which in my considered opinion he did not. . He merely stated that he was arrested by the police following the report by \ the appellant, prosecuted and then acquitted. The _appellant on the other ~ evidenced that he was assaulted by the respondent hence the report to the police. The same was substantiated unscathed by DW2. From the facts of the case, it is crystal clear that the appellant had· a probable cause to report the matter to the police and subsequent prosecution therefrom. Infact the animosity explained by DW2 shows that the respondent was the one who had ill motive towards the appellant contrary to what was submitted by Mr. Katemi. Consequently, I find that the appellant was not actuated by malice when h~ reported the matter. Mr. Katemi took an issue that the appellant did not produce a PF3 at the trial. With respect, that is an argument from the bar because I see · nowhere that the respondent raised an issue or cross examined the appellant on the availability of the said PF3. Hence, this argument being brought now is an afterthought that cannot be entertained by this c;ourt. Again, the issue of biasness as raised by Mr. Katemi in his submission; I have thoroughly gone through the grounds of appeal but I have not been able to unearth any such complaint by the appellant. I shall therefore treat the submission by Mr. Katemi on this particular point merely as out of context submission. I accordingly ignore it 9 .- In the whole and for the reasons I have explained above, I find that the respondent failed to prove his case for malicious .prosecution as required by law, thus, there was no justification for award of general ··damages on the same. I therefore, allow the appeal on its entirety with costs and accordingly reverse the decision of the trial court. , R.A. Ebrahim Judge 28.04.2016 10