20170906 TZHC Dar es Salaam

. . .,...._,. . . IN THE HIGH COURT OF TANZANIA ... DISTRICT REGISTRY AT DAR ES SALAAM '\ 'i . •.. _ ..J\ - AT DAR ES SALAAM CIVIL CASE NO. 96 OF 2012 THOMAS KALINGA ..................................... PLAINTIFF VERSUS 1.ATTORNEY GENERAL 2.INSPECTOR GE,NERAL OF POLICE CIGP ...........·................... 2ND RESPONDENT 31/7/ & 6/9/2017 - JUDGMENT I.P. KITUSI, l. This suit raises two major issues, one being of fact and another being an issue of law. The essence of the suit is an alleged gunshot on one Thomas Kalinga, the plaintiff, causing injury on his thigh. It is alleged by the plaintiff but disputed by the Inspector General of Police, the second . ,1, .. . " defendant, that the bulled that caused the plaintiff's injury was discharged ?•,) by an officer of the 2nd de.fendant on 21 st May 2009 when a team of officers from the said 2nd defendant doing patrols arrived at the scene at ' . Mbagala Kokoto area in the ·city of Dar es Salaam. According to _the Plaintiff (Pwl) arid his companion Alex .. Mwanjisi(PwS), they were playing Pool Table at a Bar of one Ignatius ·James Mshumbusi (Pw3) when a group of armed police officers entered upon the premises shouting orders against those who were there, 1 . • including Pwl and PwS. Pwl and PwS first heard a gunshot outside the premises which made PwS to run towards where the said gunshot had been heard from. However PwS had to run away when he saw the team of the armed police, and he did so as the armed people entered the Bar. In the Bar, Pwl felt a sharp thing penetrate into his body felt his body go limp, as he lied down only to learn that he had been shot at. While on the ground, people who introduced themselves as police officers closed in on him and announced that he was under arrest. However when Pw3 and others told them that Pwl was not involved, they let go. As they were leaving the premises, Pwl said to Pw3 that the police had shot him, and on hearing this, two of the policemen returned to where Pwl was lying and said "Ameangukia mwiba huyo. Mwacheni " Meaning"' " This man has just fallen on a thorn. Leave him" It was with the assistance of PW3 and PwS that Pwl was taken to Muhimbili National Hospital after obtaining a PF3 (Exhibit Pl) at Mbagala Police Station. Alex Elifuraha (Pw4) a medical Doctor at Muhimbili National Hospital examined Pwl on 17/9/2009 following complaints by Pwl that he was experiencing severe pains despite the treatment he had earlier received at the National Hospital and at Aga Khan Hospital. By reading the Medical Report (Exhibit P7) that had been prepared by Aga khan Hospital and by examining PW1, it was Pw4's conclusion that the former had suffered a gunshot injury and the bullet was still in his body. The first issue for determination as framed at the beginning of the trial is whether on 21st May2009 the plaintiff suffered a gunshot on his left 2 hip while playing Pool Table at Mbagala Kokoto area. There is the evidence of Pwl, Pw3, Pw4 and PwS that he indeed suffered a gunshot injury on that date at that place. The defendants have offered no evidence which, on a balance would render the plaintiff's version not credible. Therefore it is my finding, based on the evidence of Pwl Pw3, Pw4, PwS and exhibit Pl and P7 that the plaintiff suffered a gunshot injury on 21 st May 2009 at Mbagala Kokoto area. The first issue is answered in the affirmative. The second and third issues are those I referred to as major issues in this case. The second issue is whether the second defendant's officers who were on patrol on 21 st May 2009 are the ones who fired the gun. This is an issue of fact which must be resolved on the basis of the available evidence. As I stated earlier there are two versions regarding this fact, one to the effect that the gun was fired by a policeman and the other disputing it. For the plaintiff there are two witnesses that is Pwl and Pw3 who maintain that the armed people who entered into Pw3's Bar were police officers. The general impression created by Pwl and Pw3 is that the team of police officers was looking for a suspected Criminal or Criminals, and that they mistook Pwl for one. Further that the police officers were going to arrest Pwl if Pw3 had not intervened and told them that he was not a criminal. Pw3's testimony regarding the identity of the armed men was more detailed and is worth referring to at length. He stated that he was a former accountant in the Ministry of Defence and National Service, a position that 3 enabled him to meet and familiarize with many plain clothes police officers. On the day material to this case the people who raided his Bar. were policemen because he saw a familiar policeman who signaled with a thumb to assure Pw3 not to worry. Some people were arrested and handcuffed by the police, including one who had attempted to escape. It was only when the team of policemen was leaving that Pwl complained that they had injured him. According to Pwl the men introduced themselves to him as policemen when they were about to put him under arrest. Pwl and Pw3 further testified that while at Muhimbili National Hospital Senior Police officers including Gilles Murolo (DWl) approached them with an olive branch to seek an amicable solution. In defence DWl disputed the fact that police officers committed the alleged mischief and denied the fact that he approached Pwl for a settlement. In his submissions Mr Safari referred to the statements allegedly made by the shooters at the time they wanted to arrest Pwl, that they were police officers. He also referred to the fact that the shooting was reported to Mbagala police station where Dwl was at that time the officer Command, and that Dwl and one Libaratis Sabas (the Regional Police Commander for Temeke) approached Pwl with an apology. The submission discredited the testimony of Dwl who denied any knowledge of the incident, and who raised suspicion with the authenticity of the Pf3. It is submitted that a copy of the Pf3 was attached to the Demand letter prior to the institution of this suit, yet the police did not 4 bother to respond to it or counter the allegations by producing an occurrence Book. A Malaysian case of Small Medium Enterprises Development Bank Malaysia V. Lim Woon [ 2016] 9 C L J has been cited to drive the point home. On their part the defendants, represented by Mr Baraka Nyambita, learned State Attorney, submitted that the victim of the alleged shooting did not identify the culprit, citing the famous Waziri Amani Vs Republic{ 1980} T.L.R 250. Then he reproduced a long passage on the duty on the part of the plaintiff to prove his case. This passage is from the case of Exstein JP in National Employers General Vs Jagers (1984) ( 4) SA 437(E) at 440 D. The passage reads; " it seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfied the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not, the court will weigh up and test the plaintiff's a/legation against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of 5 the case and, if the balance of probabilities favours the plaintiff, then the court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case anymore than they do the defendant's the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false'~ Mr Nyambita further criticized the plaintiff for not calling witnesses from among the people who were at the Bar, to prove the fact that the said Bar was raided by police officers. In resolving this issue, I take into account the fact that there are two witnesses (Pwl and Pw3) supporting the plaintiff's version that the shooting was done by the police, and one witness (Dwl) disputing it. I will also bear in mind that proof of a fact does not depend on the number of witnesses, as even one witness may prove it. [Masudi Amlima V. Republic[ 1989] TLR 25]. By analogy I think it is also true to say that a single witness may disprove a fact. The established principle as to standards of proof is that in civil cases, proof is on a balance of probabilities which is; "This in ordinary English means that the claimant must prove that it is more likely than not that his version of the facts is right" [The Uganda Civil Justice Bench Book 1st Edition, Law Development Centre, 2016 at page180] 6 I will subject the present scenario to the above test, whether it is more likely that the police are the perpetrators of the shooting, than it is not. Taking the testimony of Pw3 for a start, I take his word for the fact that not only is he familiar with plain clothes police officers, but he identified one of them and responded to his greetings by sign. Secondly there is the Pf3 (Exhibit Pl) a copy of which was attached to the Demand letter tendered by Kassim Mbirikira(Pw2) as Exhibit PB. It has been submitted by Mr Safari learned counsel that the defendants neither replied to the letter nor contradicted the Pf3. In citing the case of Small Medium Enterpises(Supra) Mr Safari has referred to the following holding ; " In the instant case, it was not in dispute that the respondent did not respond to the demand notice of the plaintiff and the defence alleging that he was not liable was only raised in the statement of defence. Evidently failing to respond to the plaintiff's letter of demand that too when the defence case was related to forgery, as well as the fact that the respondent did not lodge a police report upon receiving the demand, weakened that probable force of the defence case...... ? I subscribe to that view and I am persuaded by that decision although it is from a foreign jurisdiction. I think the foregoing decision revolves around the principle in the law of evidence that some facts are relevant because they relate to the facts in issue. The holding of Rutakangwa J, ( as he then was) in Isidare Nsangu Tusevo V. Annete Altvater & Another[ 2005] TLR 424 is that the purpose of legal proceedings is to determine the rights and liabilities of the parties depending on the facts. Then His lordship went on to say; 7 11 These facts are either facts in issue or facts relevant to the facts in issue........... " There is, in my view a nexus between the principle in Small Medium Enterpises(Supra) and that in Isidore Nsangu Tusevo( supra) in that the defendant's inaction after receiving the demand letter speaks volumes against them. The demand letter not only showed a Pf3 issued by the Police, but contained detailed allegations against the police and how some officers including Dwl unsuccessfully tried to get a settlement. In the normal course of things one would expect the police to have come up with a story contradicting the plaintiff's. For all of those reasons it is my finding that Pwl was shot by a police officer among police officers who were on patrol at Mbagala. To hold otherwise would be redefining what balance of probabilities means as propounded in Miller Vs Minister of Pensions [1947] & ALL Ere 372 approved by our Court of Appeal in Chandrakcant loshubhai Patel Vs Republic Criminal Appeal No. 13 of 1998 CAT (unreported). The next issue is whether in firing the gun the police officers acted negligently. This, in my view, is a legal issue, with the legal meaning of negligence, though a household term, requiring application of legal standards. Both Mr Nyambita learned State Attorney and Mr Safari, learned advocate cited the case of Bamprass Star Service Station Ltd Mrs Fatuma Mwale [2000] T.L.R. 390. In that case, Lord Atkin, the ancestor of the principle in Donoghue Vs Stevenson [1932] AC 562 was referred to, therefore the mutual choice of the Bamprass case by counsel is not at all surprising .It is negligence when someone with a duty of care departs from 8 standards expected of him as a result of which .injury is caused to the person to whom he owes that duty of care. Duty of care varies with circumstances, and for the purpose of this .. cas.e I wish to cite two circumstances. The first is where the person with the duty of care is a professional or skilled. For the plaintiff Mr Safari has referred to the case of Theodelina Alphaxad a minor suing Through Next Friend Vs The Medical Officer In charge Mkinga Hospital [1995]. T.L.R 235 and a Uganda case of Wekesa and others Vs Reliable Freight Services Ltd and Another (2013) & EA 63. The point made by Mr. Safari is that the degree of care expected of a professional is higher. With respect I agree with Mr Safari learned Counsel that the police being skilled people in the use of firearms and effecting arrest are expected to exercise more care. I find the following passage useful on this point. "Where a person undertakes a task which requires a particular skill he will be Judged by the standards of a person who is reasonably competent in the exercise of that skill" TEXTBOOK ON TORTS Michael A. Jones, 6th Edition, Blackstone Press limited, 1986, pg 176. The second circumstance is the degree of risk. The learned author in the book cited but a while ago has the following to say in relation to the degree of risk. 9 " The law in all cases exacts a degree of Care commensurate with risk created ............... The greater the risk of harm the more precautions must be taken" (Pg 177). It has been submitted by Mr Safari, and once again I agree with him, that the police ought to have exercised more care in this case because they were discharging duties in a Bar where there are, normally, many people. Certainly the police are not expected to conduct themselves in a manner similar to any trigger - happy owner of a gun, but in this case they did. It is therefore my finding that the police did not measure up to the expected standards of skilled law enforcers and given the degree of risk associated with handling of gun in a public area, the degree of care was below standard. It is my finding that the police acted negligently. The fourth issue is whether the plaintiff suffered any damages as a result of the gunshot. This issue poses no difficult, because some of the facts are undisputed. There is no dispute from the evidence of Pwl and Pw4 as well as exhibit P7 that the plaintiff suffered and is still suffering physically. On the evidence of Pwl I am also satisfied that the effect of the gunshot rendered him incapable of going for studies at the Law School where he had been admitted, and paid for fees. In his pleadings and testimony the plaintiff referred to the permanent impairment that the gun shot has caused on him, and the Psychological and mental agony resulting from it. It is my conclusion on this point that the plaintiff suffered damages. On the authority of Edwin William Shetto Vs Managing Director of 10 -• , Arusha International Conference centre[1999] T L R 130, ·general ---'--------damages ..are_ .a_ssessed by the court. In this case I take into account the · sufferings and the ;~r;;~~~t-i~p~i-~ment~-ancf als6-tbnsider-the-.fact-that _____ c--·. the bullet is still in the plaintiff's body. I award the p[aintiff shillings one hundred rtfillion ln general damages. I also grant Shs 1,488,407 in specific . damages as prayed. I shall grant interest at court rate from the date of - judgment till full payment and decline the prayer for interest at Commercial rate. The plaintiff will have costs of the suit. JUDGE 6/9/2017 11