20170825 TZHC Mwanza

IN THE HIGH COURT Of TANZANIA AT MWANZA HC. ClVIL APPEAL NO. 40 OF 2015 {Arising from Nyamagana District Court at Mwanza in Civil Case No. 32 of, 2011} . ANNA TIBA ... ..·.. ., ................... ~ .............. APPELLANT VERSUS NTAREYEIGIRU· FREDRICK ............... RESPONDENT JUDGMENT '15/06/2017 & 25/08/2017 Gwae, J The appellant and respondent are. brother in -law and sister in-law respectively, in that the respondent is married to the appella.nt's young sister. Evidently from the record of two courts below that there were family misunderstandings between the two which eventually led the appellant's institution of criminal charge against the respondent before ~kuyuni Primary Court. The respondent was charged~ prosecuted and eventually acquitted of an -offence of threatening to kill by word c/s 89 (1) of the Penal Code, · (Cap .16 R. E, 2002) the case against the respondent was found to have failed to prove beyond reasonable doubts., basis of that finding the . . . allegedly threatening words spoken to the appellant .by the respondent .. through ITlobile phones were not undoubtedly proved, particularly the b'MJ~ 1 appellant even failed to mention phone numbers used in committing the alleged words. I. Considering his reputation has been lowered the respondent instituted a ( ) .:) civil suit, subject of this judgment, drafted with professional diligence (in the way instituting malicious suit against him under which the court of law prove it to be of malice and there were no case to answer- both in plaint and amended plaint). In his amended plaint t_he plaintiff sought the following reliefs; firstly, general damages, secondly, Redress for the plaintiff's Reputation to the tune ofTshs. 15, 000,000/= and thirdly, costs of the suit. District Court of Nyamagana at Mwan.ia (trial court) heard both parties and in its final analysis awarded the respondent Tshs. 10, 000,000/= being. compensation being a redress for defamation and costs of the case which were said to be in the course. Dissatisfied with the verdict of the trial dated 29th November 2013, the appellant, through the order of the court dated 3rd September 2015, lodged his grievances by way of an appeal to this court by filing a memora_ndum of appeal consisting a total five grounds of appeal, to wit:- 1. That, Trial. Court erred grossly erred in law and fact ·for failure to find that the Exhibit 'PEl' was improperly admitted devoid of illegalities and being objected. 2. That, Trial Co.urt erred grossly erred in law and fact for ·holding that the . respondent had established his case of malicious prosecution to the required standards of prdbapilities )}m)~f~--··-- 2 ~ 3. That, Trial Court erred grossly erred in law and fact for failure to find out that the evidence of the respondent contradicts itself hence weak evidence. 4. That, the Honourable Court grossly erred in law and fact for ordering the compensation of Tshs. 10, 000,000/= in absence of justification and proof. 5. That, the Honourable Court grossly erred in law and fact for delivery decision which suffers double standard. · At the hearing, the appellant was represented by Mre Julius Mushobozi, the learned advocate whilst the respondent did not appear despite the fact that it was proved that he was served by way of substituted service that is, Mwananchi newspaper dated 15 February 2017. After proof of service being produced in court the appellant's appeal was then heard ex- parte. Mr. Mushobozi opined to have thel st and 5th ground of appeal abandoned and proceeded with the rest of the grounds by submitting _as here under; In 2nd ground of appeal, Mr. Mushobozi strongly that the elements necessary for proof of malicious prosecution were not proved, particularly malice and absence of probable and reasonable on the par~ of appellant adding that the same were equally not pleaded by the respondent. Mr. Mushobozi went saying the trial court's basis to have the suit proved that is failure to mention phone number is wrong consideration as failur~ to mention phone numbers doeS not necessary constitute~ absence of probable and reasonable cau~e. ,,,,,~ 3 Regarding the 3rd ground of appeal, Mr. Mushobozi said that respondent's evidence · was contradictory in that in his plaint he stated there was malicious suit while in his evidence he said that there was malicious criminal case. The appellant's counsel further submitted in respect of the 4 th ground that the award of Tshs. 10,000,000/=had no justification and therefore inconceivable. Having summarized what culminated the respondent's case, trial before the trial court and what transpired in appeal before the court, I should now determine the appellant's appeal. As to the 2 nd ground, it is clear from the trial court judgment that the appellant was found to have maliciously instituted criminal charges ( er. Case no. 489/2010) against the respondent after the trial court having been satisfied that the appellant did not disclose numbers of phone allegedly used to call her, allegedly used by the respondent to threaten to kill the appellant by words. The appellant during her defence admitted to have lodged complaints ag·ainst the respondent but persistently denied to have been acted maliciously, thus a need to close assess elements nec~ssary for establishing either tort of malicious prosecution or defamation. Looking at the pleadings and framed issues namely, whether plaintiff was defamed by the defendant, whether the defendant maliciously sued the plaintiff in particularly), it _is quite contradictory as rightly complained by the .appellanfs counsel. Issue of malicious prosecution .was luddly not ~jj)~i "l~, 4 pleaded and even in the issues framed there was nothing to apprehend like torts of malicious prosecution. The defendant now appellant ought to be fully notified of the case through the respondent's plaint or amended plaint so that she could adequately prepare her defence, James Funke Ngwagilo v. Attorney General (2004) TLR 161-CA "The function of the pleadings is to give notice of the case which has to be met, the party must therefore so state his case that his opponent will not be taken into surprise .. .In order to maintain an action for malicious prosecution a plaintiff has to prove among other things that, that the prosecution was undertaken without reasonable and probable cause". To be frank the respondent's plaint (see para. 3) as weH as in his subsequently filed amended plaint (see Para. 3) are all about institution of suit by the appellant, a suit and criminal case are two different things, the respondent who fortunately had secured <?n advocate to draft necessary documents ought to be diligent enough before presenting them for filing. As it is, one cannot be in better position to defend either in torts of defamation or malicious prosecution or both. Pleadings should be avoided to be confusing but be made to be readable and understandable ·by both parties and any interested party. Moreover during framing of issues, necessary ingredients for Malicious Prosecution were not adequately included in the framed issues for determination, particularly purported omission· to · include prosecution without probable .and reasonable. cause. Identification with clarity issues on ~ 5 • which the court will be called upon to adjudicate in determination of matter in dispute is of high importance. Requirement to_ prove absence or otherwise of probable and reasonable on the part of one who instituted a criminal .charge has .been consistently ) . . emphasized in our courts and courts other jurisdiction for instance Amina Mpimbi v Ramadhani Kiwe (1990) TLR 6, Kagane and others· v Attorney General and another and Hicks v. Faulkner (1969) 1 EA 643, just to mention a few. Worse still, the appellant produced the 'PEl' whi<;h glaringly indicates that the criminal case no. 489 of 2010 filed before Mkuyuni Primary Court at Nyamagana District was conclusively heard and determined, hence it did not end up in the stage of no case to answer as wrongly pleaded in the paragraph 3 of the respondent's amended plaint. This was wrong on the part of the respondent as he ought to know the position of the case he was facing as depicted in the judgment of Mkuyuni Primary Court instead of fumbling in his pleadings (this finding also answers the 4th ground of appeal). The ~rial court is observed to have held that the criminal charge was maliciously lodged and further held that the charge against the respondent was nothing but cook-up. In case of malicious_ prosecution, it is generally safer right to hold so if the basis for the prosecution is allegedly to be wholly fabricated by a prosecutor/complainant but not _correct to so hold in the circumstances where there is contentious iSSl:Je, whether ther~ was reasonable and probable cause for the_ prosecution is primarily to be ·_. ~J}iy})~-~- · judged on the basis of an objective test. · · • ~ 6 Due to the observed inconsistencies of the pleadings, framed issues and basis of .the trial court decision noted and complained of, the proceedings, decision and orders thereof cannot be left to stand . .,;) In the event, t~e appellant's appeal stands allowed, respondent if so wishes may re-file the same but subject to law of limitatlon, in the circumstance of the case each party to bear its costs. ·-,., \ r i. •.' • It is so/cfa.~r~]~~-:.--· . / ,, C ~•\':\\ ~ :, "' ·:t½.t)J :::1;01~. Right of~ppeal f6{a6'"aggrieved party or any other remedy is open ~~~~ M.R.··~ Judge 25/08/2017 7