safari mwazembe vs juma fundisha 2020 tzhc 3568 1 october 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA) AT MBEYA CIVIL APPEAL NO. 14 OF 2020 (From the District Court of Mbozi at Mbozi at Vwawa in Civil Case No. 01 of 2019.) SAFARI MWAZEMBE............................................................................ APPELLANT VERSUS JUMA FUNDISHA.............................................................................. RESPONDENT JUDGEMENT Date of Last Order : 13/08/2020 Date of Judgement: 01/10/2020 MONGELLA, J. Safari Mwazembe, the appellant herein, is challenging the decision of the District Court of Mbozi at Vwawa handed out in Civil Case No. 01 of 2019. In this case he supposedly sued the respondent for defamation. The suit resulted from the respondent’s act of instituting criminal proceedings in Totowe primary court against him on malicious damage to property. In the criminal proceedings, the respondent, Juma Fundisha claimed that Safari Mwazembe had killed his calf as it was found dead in his farm whereby several cows belonging to Juma Fundisha had gone to graze. Safari Mwazembe was convicted of the offence but acquitted on appeal to the District Court of Mbozi in Criminal Appeal No. 28 of 2018. He Page 1 of 15 succeeded on appeal and decided to file a civil case against Juma Fundisha claiming damages for defaming him through the criminal case. He claimed that the criminal case damaged his reputation before village members who started considering him as being criminal. The District court saw that the case was on malicious prosecution and Safari Mwazembe had failed to prove the claim thus dismissed the suit with costs. Aggrieved by this decision he preferred this appeal on the following three grounds: 1. That the presiding Magistrate erred in law and facts by holding that the appellant was the one who killed the calf because the appellant is the farm owner without taking into account that there was no eye witness who testified to have seen the appellant killing the said calf. 2. That the presiding Magistrate erred in law and facts by proceeding to hear Civil Case No. 1 of 2019 in his capacity due to the fact that the presiding Magistrate was the one who presided over and heard Criminal Appeal No. 28 of 2018 between the appellant and the respondent. 3. That the presiding Magistrate erred in law and facts when he failed to give opportunity to be heard for the appellant during hearing of Civil Case No. I of 20 J 9. Both parties were represented whereby the appellant was represented by Mr. Omary Issa Ndamungu while the respondent was represented by Mr. Moses Mwampashe, both learned advocates. The appeal was argued by written submissions filed in this Court by both counsels os per the scheduled orders. Submitting on the first ground, Mr. Ndcimungu argued that the suit before the trial court was on defamation and not on malicious killing of the calf of the Respondent by the Appellant. He said that the question of malicious killing of the calf was the issue in Criminal Case No. 40 of 2018 instituted by the respondent against the applicant, but was acquitted on appeal in Criminal Appeal No. 28 of 2018. Following this acquittal the appellant instituted Civil Case No. 1 of 2019 in the District court suing for defamation. He thus argued that it was wrong for the trial court to decide as to who killed the calf as it was not the matter at issue. Mr. Ndamungu further argued that the trial Magistrate committed the error on two grounds being failure to frame issues and second biasness. Regarding the framing of issues, Mr. Ndamungu contended that it is imperative for the trial court to frame issues before commencement of trial. Citing Order XIV Rule 1 (5) of the Civil Procedure Code, Cap 33 R.E. 2019, he argued that it is the duty of the court to frame issues and it must be done at the first hearing of the suit. He insisted that it is mandatory to frame issues before the trial commences. Referring to the trial court proceedings at page 5 and 6, he argued that when the suit came for hearing on 10th May 2019, the trial Magistrate did not frame issues. Citing the case of Zalkha Bint Mohamed v. Juma Mazige (1970) HCD 132, he argued that the non-framing of issues by the trial court led into the parties not knowing what exactly was for the trial and for decision. He was of the view that the failure to frame issues misled the trial court as it ended up deciding the cose basing on matters which were not pleaded, contested and proved by either of the parties. He as well referred to the case of Stanslaus Rugaba Kasusura v. The Attorney General and Phares Kabuye (1982) TLR 338 under which the Court of Appeal nullified the judgment and proceedings of the High Court for failure to frame issues. Replying to this ground of appeal, Mr. Mwampashe submitted that the appellant has misconceived the cause of action in the case before the trial court. He argued that the cause of action is to be grasped from the pleadings and not from the testimony of the claimant. He referred to the case of Musanga Ng’anda Andwa v. Chief Japheth Wanzagi & 8 Others [2006] TLR 351 in which the term cause of action was explained to mean “every fact which would be necessary for the plaintiff to prove in order to support his title to a decree” The court further stated that “in determining a cause of action, only the plaint together with anything attached should be looked at.” He proceeded to argued that, in the case at hand, if one goes through the pleadings, especially the plaint, at paragraph 3, will discover that the appellant claimed to have been prosecuted by the respondent maliciously and without good cause. He added that even in his rejoinder, the appellant repeated the same claim. On these bases, he argued that the trial court decided correctly because the cause of action was not defamation or malicious killing, but was on malicious prosecution as shown in the plaint. Regarding the framing of issues, he contended that the trial court framed issues and the same is evident at page 2 of the trial court’s judgment. On this contention he distinguished the case of Zalkha Mohamed (supra) and that of Stanslaus Rugaba Kasusura (supra) relied upon by the appellant. On the second ground, Mr. Ndamungu averred that Civil Case No. 1 of 2019 resulted from Criminal Appeal No. 28 of 2018, which was presided over by Hon. Chami. He thus contended that, considering the rule against bias, it was incorrect for the same Magistrate to preside over Civil Case No. 1 of 2019. He argued that the rule against bias prohibits any judicial personnel including magistrates to be involved in any proceedings in which they have an interest. He was of the position that by presiding over Criminal Appeal No. 28 of 2018, the trial Magistrate developed an interest in the matter, though not economic or blood relation interest, thus indicating sign of biasness. He argued that the trial Magistrate decided Civil Case No. 1 basing on the knowledge he had on Criminal Appeal No. 28 of 2018. He was of the stance that it is because of biasness that the trial Magistrate decided the question of who killed the calf, which was not at issue. He cited section 65 (1) of the Magistrates’ Courts Act, Cap 11 R.E. 2019 which prohibits biasness on the side of judicial personnel on pecuniary or personal interest. He added that the trial Magistrate violated this provision as well as section 7 of the Official Oaths Act, Cap 23 R.E. 2002 which requires judicial personnel to administer cases without favour or ill will. In reply to this ground, Mr. Mwampashe argued that Civil Case No. 1 of 2019 and Criminal Appeal No. 28 of 2018 are two different cases. He said that the appellant is the one who filed the case at the trial court and therefore it was his duty to raise this issue at the trial court if he thought there are circumstances of biasness. He was of the position that it is improper to raise this new issue at this stage as this appellate court is supposed to only deal with matters decided in the judgment of the trial court. He challenged the application of section 65 (1) of the Magistrates’ Courts Act relied on by the appellant’s counsel saying that it is inapplicable in the matter at hand. He argued so on the reason that there is neither pecuniary interest nor personal interest shown by the applicant to prove that there was biasness on the part of the trial Magistrate. He was of the position that this issue requires evidence which is lacking from the appellant. Regarding the third ground, Mr. Ndamungu contended that the appellant was not given the opportunity to be heard. He argued this ground with respect to final written submissions ordered by the trial court after completion of recording evidence from both parties. He submitted that on 27th June 2019, as seen at page 27 of the proceedings, the trial Magistrate ordered for filing of final written submissions. Referring to Order XVIII Rule 2 of the Civil Procedure Code, he submitted that it is a right of every party to the proceedings to make final submissions after hearing of the suit comes to an end. He argued that the defendant was allowed to make final submission in accordance with Order XVIII Rule 2 (2) of the Civil Procedure Code. He added that according to Order XVIII Rule 2 (3) the appellant, who was the plaintiff, was to be served with copies of the respondent/defendant’s final Pacrp ft nf 1 R submission and to make final submission thereto. However, he said, the appellant was not served with any copy of the respondent’s final submission and thus not given the opportunity to file his final submission. On these bases he argued that the appellant’s right to be heard was denied by the trial court. On this ground, Mr. Mwampashe vehemently disputed the claim that the appellant was denied his right to be heard. He argued that the appellant was present in the trial court throughout the trial and gave his testimony together with his witnesses, thus it is baseless to claim that he was denied the right to be heard. He contended further that the appellant has misconceived what is meant by final submission and the purpose it serves. He argued that it is the principle of law that final submission is not evidence and it is not a mandatory requirement. He invited the court to consider the decision in Southern Tanganyika Game Safaris and Another v. Ministry of Natural Resources and Tourism and Others [2004] 2 E.A. 271 in which it was held that “final submissions are only intended to provide a guide to the court in resolving the framed issues.’’ He as well referred to the case of Morandi Rutakyamirwa v. Petro Joseph [1990] TLR 49 in which it was held that: "...filing of closing submissions is not a mandatory requirement meaning that a decision in a case can be effectively rendered without the parties’ final submissions.” He concluded that the appellant in the case at hand was fully accorded his right to be heard, hence his claim is baseless. He added that as a matter of practice, if the court grants an order to file final submissions, the same always run concurrently because parties are supposed to base on the evidence adduced in court in drafting the submissions. After considering the arguments by both counsels I shall first deliberate on the question of non-framing of issues and its effect on the case before the trial court. Order XIV Rule 1 (5) of the Civil Procedure Code requires the court to frame issues at the first hearing of the suit. It specifically provides: “At the first hearing of the suit the court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material proposition of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. ” Mr. Mwampashe argued that the trial court framed issues as it con be seen in the judgement. Under Order XIV Rule 1 (5) as seen above, issues are to be framed before witnesses proceed to adduce evidence and not at the time of wrifing judgment. However, non-framing of issues is a procedural irregularity which may not be fatal to the proceedings, unless where it occasions injustice to one of the parties. This position was long settled in the case of Norman v. Overseas Motor Transport [1959] EA 131 in which it was held: “The failure to frame issues is an irregularity, the question would appear to be whether notwithstanding the failure to frame issues the parties at the trial knew what the real question between them was, that the evidence on the question had been taken and the court dully considered It follows therefore that framing of issues can only be fatal where the parties to the suit did not know what the real issue was between them. (See also: Tumaini Thomas Mfyuji v. Christopher Thomas Mfyuji & Grace Thomas Mfyuji, Probate and Administration Appeal No. 2 of 2019 (HC at Iringa, reported at Tanzlii). In the matter at hand, considering the evidence adduced by the parties, it is obvious that the parties knew the real questions that were between them. In his plaint, the plaintiff pleaded malicious prosecution (see paragraph 3 of the plaint) as well as defamation (see paragraph 5 and 6). His evidence was as well centred in these two claims. I therefore do not agree with Mr. Ndamungu’s contention that the parties did not what issues were between them. Mr. Ndamungu in the first ground also claimed that the trial court deliberated on a non-pleaded issue on the killing of the calf while the matter was on defamation. With all due respect, I think he did not take time to thoroughly read and understand the contents of his client’s plaint and the reasoning of the trial court in the judgment. As I have pointed out earlier, it is clear from paragraph 3 of the plaint that the plaintiff pleaded malicious prosecution. In his evidence as well, the appellant claimed to have been criminally prosecuted by the respondent without good cause. Under paragraphs 5 and 6 of the plaint, the appellant claimed to have been defamed by the criminal prosecution. I have keenly read the trial court judgment and found nowhere where the trial court Magistrate ruled that the appellant killed the respondent’s calf as claimed by Mr. Ndamungu. The trial Magistrate in his endeavour to establish whether or not the tort of malicious prosecution was established, discussed the circumstances under which the respondent instituted the criminal proceedings against the appellant. His conclusion was that since the respondent’s cows entered the appellant’s farm and were chased out by the appellant and later on his calf was found dead in the appellant’s farm, then the respondent had all the reasons to believe that it was the appellant who killed his calf. This finding is in relation to the claim on malicious prosecution whereby the plaintiff was obliged to prove that the criminal proceedings were instituted without reasonable and probable cause. It does not mean that the trial court drew a conclusion that the appellant killed the respondent’s calf. In my settled view, it was inevitable for the trial court to reach a finding without scrutinizing the circumstances which led the respondent to institute the criminal proceedings in court on malicious damage to property. The appellant and his advocate have totally misconceived the gist of the trial court judgment. To this juncture, I wish also to point out that I join hands with the trial court decision that the tort of malicious prosecution was not proved. For a claim of malicious prosecution to succeed, the claimant has to prove non­ existence of reasonable or probable cause and malice on the part of the defendant. In the matter at hand, the appellant failed to prove the same against the respondent because the appellant, as ruled by the trial court, had all the reasons to believe that it was the appellant who killed the calf, considering the circumstances that had transpired. In the case of Amina Mpimbi v. Ramadhani Kiwe [1990] TLR 6 the court discussed the elements needing proof in establishing malicious prosecution. It was held that: “For the appellant to have succeeded in her action against the respondent she should have proved in court below that there was “Malice" on the part of the respondent in that he had prosecuted her in the “Primary Court" without just cause or excuse” or that the respondent had no reasonable and probable cause.” In Jeremiah Kamana v. Bugomola Mayandi [1983] TLR 123 the elements of malicious prosecution to be proved by the plaintiff were also settled to the effect that: “(a) He was prosecuted; (b) that the proceedings complained of ended in his favour; (c) that the defendant instituted the prosecution maliciously; (d) that there was no reasonable and probable cause for such prosecution; and (e) that damage was occasioned to the plaintiff." In the above case, the court went further to state that “malice exists where the prosecution is actuated by spite or ill-will or indirect or improper motives.” Taking all these considerations into account and the evidence adduced in the trial court I find that the presiding Magistrate in the matter at hand correctly dismissed the appellant's case for failure to prove all the elements as enumerated in the above cited authorities. On the other hand however, I found that the trial court did not make any deliberations on the claim for defamation though the appellant adduced evidence to that effect. Nevertheless, this being the first appellate court, it has powers to evaluate and consider the evidence and proceed to deliberate on the claim. See: Prince Charles Junior v. The Republic, Criminal Appeal No. 250 of 2014. At page 13 and 14 of the proceedings, the appellant claimed that the criminal case instituted by the respondent against him in Totowe primary court caused him to suffer economically, psychologically and also troubled his family. He claimed that criminal case has put him into shame before the society members who used to trust him. On those bases he claims to be defamed by the appellant. Defamation is defined as “communicating to the mind of another, matters which are untrue and likely in the natural cause of things substantively to disparage the reputation of the third person.” See: Hamis v. Akilimali (1971) HOD 111. My learned brother, Dyansobera, J. in the case of Tito Peter Mwakyusa v. Juma Abdallah Kapikulira, DC Civil Appeal Case No. 12 of 2019 (HC at Mtwara, reported at Tanzlii) amplified the above definition by further providing five essential elements to be proved by the claimant for a claim on defamation to be successful. He stated that: “First, the statement complained of was defamatory. Second, the statement was published. Third, the statement was false. Fourth, the statement was injurious to the appellant’s reputation. And fifth, the statement was unprivileged." He further explained a “defamatory statement” to be a false statement of fact that exposes a person to hatred, ridicule or contempt, causing him to be shunned or injures him in his business or trade. From this explanation it can therefore be concluded that there has to be publication of false statements that are calculated to injure the reputation of the claimant for a claim on defamation to succeed. The injury must also be substantiated as it does not suffice to merely claim that the claimant has suffered loss/injury. See also: Rugarabamu Archard Mwombeki v. Charles Kizigha & Three Others [1985] TLR 59. Mp In the matter at hand, the appellant claims that by being criminally prosecuted, the appellant defamed him. With all due respect, reporting a matter to police and institution of criminal proceedings in a court of law do not meet the criteria provided in the above cited cases. It does not amount to publication of false statement and therefore the appellant had no case against the respondent based on defamation. The claim falls under malicious prosecution which I have already ruled that it was not proven to the required standard. On the second ground, the appellant claims that the trial Magistrate erred in entertaining Civil Case No. 1 of 2019 having entertained Criminal Cose No. 28 of 2018. On this ground, I would first wish to point out that there is no specific provision under the law that prohibits a magistrate or judge from entertaining two different cases involving the same parties. In his submission, Mr. Ndamungu argued that the trial Magistrate was biased as he had in mind the facts of the case from entertaining Criminal Case No. 28 of 2018. As much as I agree that a magistrate or judge can be disqualified from entertaining a matter where there are elements of biasness, I am of the position that it does not suffice to merely raise the claim, especially on speculation. The party claiming biasness on the part of the magistrate or judge has to specifically substantiate the same. Mr. Ndamungu argued that by entertaining Criminal Appeal No. 28 of 2018, the trial Magistrate developed personal interest in the case. With all due respect, I do not agree with his position. A magistrate or judge does not develop personal interest in a matter by merely adjudicating upon it. Therefore the appellant and his advocate ought to have provided substantial proof of the interest alleged. Besides, if the trial Magistrate was to be biased as claimed, I am of the opinion that he would have been biased in favour of the appellant. This is because the appellant won the case in Criminal Appeal No. 28 of 2018 and was acquitted by the same Magistrate. Under the circumstances I fail to understand how the trial Magistrate could be biased against the appellant whom he acquitted in Criminal Case No. 28 of 2018, which gave rise to Civil Case No. 1 of 2019. As argued by Mr. Mwampashe, the appellant ought to have required the trial Magistrate to recuse himself in conducting Civil Case No. 1 of 2019, but did not do so. This connotes that he was comfortable with the trial Magistrate conducting the case with hopes to win considering that it was the same Magistrate who acquitted him. I find the claim to be an afterthought and thus lacking merit. On the last ground, the appellant claims that he was denied the opportunity to be heard as he was not given the chance to file his final written submissions. Final submissions are governed under Order XVIII Rule 2 of the Civil Procedure Code. The said provision does not make it mandatory for the parties to the suit to file or make final submissions. I have gone through the proceedings of the trial court and it is vivid that on 27th June 2019, the trial Magistrate ordered for final submissions to be filed on 24th July 2019 (see page 27 of the typed proceedings). Order XVIII Rule 2 provides that a party may address the court “generally on the whole case.” In my considered view, “addressing the court generally on the whole case” means addressing the court taking into account the facts of the case, the evidence of both sides and the law applicable on the matter at hand. It does not mean replying to the submissions of the other party and that is why, as argued by Mr. Mwampashe, the practice of the court in final written submissions has been to order the parties to file the submissions on the same date. This is in fact what the trial court did. I therefore do not subscribe to Mr. Ndamungu’s contention that the appellant was denied the right to be heard. He ought to have adhered to the order of the trial court by filing his final written submission on 24th July 2019 as he already had at his disposal the facts of the case, the evidence adduced by both sides and ample time of one month to search for the applicable law to support his arguments in his submission. Failure to adhere to the trial court order, the appellant forfeited his right to be heard in the final submission and cannot complain about it at this appellate stage. Given the observations I have made hereinabove, I find the appellant’s appeal devoid of merit and I dismiss it in its entirety with costs. Dated at Mbeya on this 01st day of October 2020. L. M. MO^GELLA JUDGE Court: Judgment delivered in Mbeya in Chambers on this 01st day of October 2020 in the presence of both parties.