20170804 TZHC Mwanza

. . ... IN THE HIGH COURT Of TANZANIA (MWANZA REGISTRY) ATMWANZ-A HC.CIVIL CASE N0.15 Of 2014 EDMUNIDl SYLVESTER NGENI. ....................................... PlAINTiff VERSUS MJANJA NAGAGWA ........... .·.................................. ~ .... ~DEFENDANT . Last order.~ 14/06/2017 Judgmenc04/08/2017 JUDGMENT MAKARA.MB.A, J.: This Judgment is on a claim. the Plaintiff, EDMUNDI SYLVESTER NGENI, brought a suit in this Court on the 15th day of May, 2014 · against, MJANJA NAGAGWA, the Defendant herein, for payment of a total sum of Tanzanian Shillings Three BIiiions Forty One Hundred Millions_ Six Hundred Forty Thousands (~shs. 3,041,640,000/ =) being special and general damages for maliciously arresting, prosecuting and imprisonment of the Plaintiff by the Defendant without probable cause. The background to this suit briefly as it could be gathered from the pleadings is that, sometimes in December, 2007, the Defendant, · MJANJA N.AGAGWA, lodged a complaint at the Sengerema Police Station accusing the Plaintiff, EDMUNDI SYLVESTER NGENI, of stealing a total of 120 fishnets worth Tshs.2,500,O00/:::: alleged. to be the Defendant1s property. at the Maisome Island in Lake Victoria, Sengererna, District in t \ :l Page 1 of 17 l ·'·. Mwanza Region. Following that complaint, the home of the Plaintiff ·was searched and a totai of 228 fishnets worth Tshs.17,100,000/=, two fuel . lines each worth Tshs.120,000/=, 60 litres of petrol worth Tshs.120,000/= and _oil tanks each worth Tshs.90,000/= got lost. The· Plaintiff was arres_ted and on 19/05/2007 the Plaintiff jointly with· two (2) others, John s/ Salango and Charles s/o Kamata were ar·raigned before the Sengerema District Court in Criminal Case No.233 of 2007 on charges of stealing c/s 265 of the Penal Code, Cap. 16 R.E.2002 and pfeaded not guilty to the charge. The trial Court after hearing evidence from both sides found them guilty, convicted and sentenced them to serve six months in prison at the ~asungamile Prison in_ Sengerema District.. They were dissatisfi.ed by the decision and appealed both the conviction and sentence to the High Court in Mwanza in H.C. Criminal Appeal No. 80 of 2011, and on the 11th of· November, 2013, the High Court (Hon. Bukuku, J.) having considered the appeal quashed the conviction and set aside the sentence and set the Appellants at liberty. The Judgment of the High Court in that appeal has never been reversed. However, at the time the decision of the High Court· on appeal was delivered, the Plaintiff had already served the full term of his sentence. The Plaintiff claims that the confiscation of the 228 fishnets has caused a loss of a total of Tshs.3,024, 540,000/ = in profit as he used to get 400 Kgs of fish per day and each kilogram of fish catch was worth Tshs.3,000/=, an amount the Plaintiff claims that he would have realized v . . from the date of his arrest on 19/05/2007, to the date of the Judgment of the High Court on his appeal on the 11 th of November, 2013. Page 2 of 17 ,,_ further contention of- the Plaintiff that the Defendant was maficious and . . was unnecessarily instrun:,ental in prosecuting the case, which in fact had no evidence; Consequently, the. P_laintiff further claims, he h?s suffered · physical _and mental pains, and had been lowered- in his reputation in the estimation of his friends and has been prevented from attending to his business and works for such period of time and as a result his family has been subjected to insurmountable difficulties. The Plaintiff maintains further that the act of the Defendant of acting maliciously and without any . reasonable or probable cause has rendered the Plaintiff to suffer in prison for six months and his business has been· paralyzed leading to immense loss and bankrupting his life and his business. The Plaintiff has therefore brought the instant suit the subject of this J~dgment praying · for Judgment and Decree for the following reliefs, namely:- 1. Payment of a sum of Tshs.,3✓ 041/64~000/- by the Defendant to the Plaintiff being special damages for loss ofproperty and business/ 2.· Payment of general damages for malidous prosecution and false imprisonment to be assessed by Court 3. Commercial interests rate at 33% on item (i) hereinabove per months from date of default to date ofJudgment 4. Interest on item (1) hereinabove at the rate of 25% per annum from . . the date of Judgment to date of full payment and thereafter court interest rate of 12% per annum till payment in full. Page 3 of 17 5. Costs of this action. . . · 6.. Any other relief(sj as the Court may deem fit and just in the circumstances. ·In prosecuting the case, Mr. Nje_lwa, learned Counsel represented the Plaintiff and Mr. John .Mho_zya and Novatus Muhangwa, learned Counsel's advocated for Respondent. On the first. day of the hearing o~ the suit, the following issues were framed by the learned Counsels for the parties and accordingly recorded by this Court for the determination of this suit, namely; 1. Whether the Defendant i{Jstituted the prosecu(ion maliciously ·against the Plaintiff. 2. Whether there was any probable or justifiable cause of the said prosecution. 3. Vvhether the Plaintiff suffered any damages. 4. What reliefs are the parties entitled to. Essentially the three issues as framed and recorded for · the determination of this suit in my considered view touch on and concern the ingredients which a claimant in case of malicious prosecution has to establish to entitle him to a relief. Before I traverse the substance of the evidence in this suit howeve~, let . . me albeit very briefly comment on the accrual of cause ·of action in this case. In terms of section 3 of the Law of Limitation Act, Cap.89 R.E~~ Page4of17 ~ .. , 11 the right-of action in respect of any proceeding/ shall ar:crue on the date .. . on which the c:ause of action arises." And-as per section-6(d} of the Law of Limitation. Act Cap. ·89 R.E. 2002, in the case qf a suit for malicious · prosecution, "the right of action shall be deemed to. have accrued on the date on which the plaintiff was acquitted or the prosecution w_as otherwise terminated" In the present case, the Plaintiff who was the accused in Criminal Case No.233 of 2007 was acquitted on appeal in H.C. Criminal Appeal No_. 80 of 201·1 on the ll.1 th of November, .2013, and therefore the Plaintiff by bringing the suit in this Court on the 15 th day of May, 2014 against the Defendant for malicious prosecution, which is in a "suif founded on tort', the Plaintiff was well within the limitation period of three years for such suits as clearly provided for under Item 6 of Part I of the Schedule tci the Law of Limitation Act Cap.89 R.E. 2002. Let me now proceed to determine the first issue in this suit, which is whether the Defendant instituted the prosecution maliciously against the Plaintiff. In. the course of the trial, the Plaintiff (PWl) stated· that, it was the Defendant who maliciously directed ·the police officers to the fishing Camp of the Plaintiff and arrested the Plaintiff. PWl stated further that on the 31st of December, 2007, the Defendant accompanied with Polic·e Officers using a boat labeled "SOWETO" owned by the Defendant, went to the fishing Camp of the Plaintiff, arrested the Plaintiff and then took him to the Sengerema Police Station where the Plaintiff was charged with theft of fishing nets. PW1 stated further that the Plaintiff was. then arraigned before the District Court of S~ngerema on a charge of stealing the fishin~f Page 5 of 17 the Defendant, ·was convicted and sentenced to six (6) months in jail. The evidence of. PWl was supported by that of PW2 on the fact of being · arrested, charged, convicted and sentenced. -However, the most critical element to be established the. prosecution ·<?r the Plaintiff was done · maliciously. In other words the issue is whether on the 31st of Decembe~ 200~ the Defendant maliciously directe~ led and accompanied the Police· Officers to the Plaintiff's camp where the Plaintiff was arrested and the alleged stolen fl_shnets were· seized During cross-examination, the Plaintiff (PWl) stated that, on the 31 st of December, 2007, the date it is alleged that the stolen fishnets· were seized, the Plaintiff. was neither at his ~amp nor was· he arrested at his camp. According to the testimony of PWl, on the 31st of December, 2007, the Plaintiff was at Nkome Village. This particular piece of evidence was supported by the testimony of PW2 who stated that, on the 31st •Of December, 2007 when the Police Officers arrived at the fishing camp of the Plaintiff, the Plaintiff was not there as he was on· safari. On the evidence by-the Plaintiff, this Court finds that, the Plaintiff has contradicted himself on the issue whether on the 31st of December, 2007, when it is alleged that Police Officers arrived at the camp of the Plaintiff, the Plaintiff was present ther:e. Since in his cross-examination, the Plaintiff refuted to have· been present at his fishing camp, undoubtedly, the Plaintiff could not have been in a position to know what transpired at his fishing camp on the 31 st of December. 2007. The Plaintiff never even witnessed the Defendant leading or directing the Police Officers to enter the premises of the Plaintiff and seize the fishnets of the Plaintiff. It is also.not true that the Page 6 of 17 ( Plaintiff was arrested on the 31 st of December, 2007 at his camp. All what h_as been stated by the Plaintiff on how the Police Officers arrived at his camp and seized his fishnets was nothing but pure hearsay, which as a matter of principle,. unless it. falls within ·the exceptions, .cannot be entertained by a court of law. It was the testimony of PW2 that, on the 31 st of December, 2007 the Plaintiff recognized Mr. Mjanja Nagagwa, the Defendant herein, leading ·the Police Officers to the· camp of the Plaintiff where the alleged ·stolen fishnets were seized. However, a Police Officer with No. E9434 Corporal .Rajah who testified at the trial· as DW2 and Mrr. Samwel James who testi_fied at the trial as PW4, both stated that they were 1 among the persons who accompanied the Police Officers to the Plaintiff s Camp, and that they went to the Plaintiff s camp on the 1 st day of 1 December, .2007 and riot on the 31 st day of December, 2007. In his testimony DW2 stated further that, they were accompanied by Mr. Kambona, Mr. Samwel and Mr. Mnaku only . According to DW2, Mr. Mjanja Nagagwa (the Defendant) did not accompany them. However, in the Judgment by the Sengerema District Court in Cri·minal Case No. 233 of 2007, the Defendant himself stated that, on the 1 st of December, 1 2007 he found his stolen fishnet at the Plaintiff s· premises while accompanied by Police Officers. There is no fota of evidence on· record to support the claim by the Plaintiff that, on the 31 st of December, 2007, Police Officers accompanied by a group of people including the Defendant searched and seized fishnets at the Plaintiff s _camp. There is also no iota of 1 evidence to s_upport the Plaintiff s allegation that, on. the 31 st day of 1 Page 7 of 17 .. ( December, 2007, the Defendant directed and led Police Officers to arrest and seize the Plaintiff together with his fishnets. The Plaintiff seems to lay allegations with regard to events· which occurred on the 31 st day· of Dec.ember, 2007, which events were not at issue in Cromirial Case No. 233 of 2007 before the Sengerema District Court from which the present civil case. originates. In the Judgment of the Sengerema District Court· in Crimina! Case No. 233 of 2007 it was alleged that, the search and · seizure by the Police Officers happened on the 1 st day of Decem~er, 2007. It is for the above reasons, this Court finds that, the Plaintiff has failed to prove hi~ allegation that, the Defendant directed a,:1d led Police Officers. to arrest the Plaintiff on the 31 st day of December, 2007, a fact which according to him constitutes malice. Furthermore, neither the Plaintiff nor the Defendant established if there was any hatred between them prior to the alleged arrest and/or seizure. Worst still, the Defendant (DW1) stated in his testimony at the trial, that he (DW1) did not know the Plaintiff before the incident; but only came to see the Plaintiff in Court at the Sengerema District Court. In his evidence, the Plaintiff has not stated if he knew the Defendant before and/or they knew each other before the date of the alleged incident. In the absence-of any evidence of· familiarity or hatred between the Plaintiff and the Defendant prior to the incident at issue, this Court finds it difficult to read any sort of malice between the Plaintiff and the Defendant. It was also the .evidence of DW2 and DW4 -during the trial that, the sea_rch team even found and identified some stolen fishnets from the NJIWAPORI and AIR -~·· Page 8 of 17 FRANCE Camps. In my considered view, if the· Defendant had any malice towards the Plaintiff, the Defendant could not have directed the Police Officers to seize only the fishnets of the Plaintiff-and not those of the other people alleged to· have· been stolen from the 0th.er camps,- namely, NJIWAPOR.I and AIR FRANCE Camps. If the Defendant and the Police . . Officers could have only targeted the fishnets from the Plaintiff; then most probably malice could have been established. It _is for the foregoing reasons, the first iss_ue whether ·the Defendant instituted the prosecution maliciously against the Plaintiff fails and it is hereby answered in the negative. The s~cond issue for determination by this Court is whether there was no Justifiable and probable cause in instituting the said prosecution. It was the evidence of Corporal Rajabu (DW2) that, on the 30th of November, 2007 at Kanyala in Sengerema in the leadership of the OCD, SSP and other Police Officers, three people namely; Mr. Samwel, the Supervisor of Njiwapori Camp; Mr. Kambona, the Supervisor of Air · France Camp and Mr. Mnaku, the Supervisor of Lakairo Camp, told the Police Officers that their fishing nets had been stolen in their respective camps located in the Islands of Lake Victoria. DW2 stated further that, since the Police Officers had no any means of transport to the Islands to conduct the search and· seizure of the alleged stolen fishnets, the three fishermen namely; Mr. Samwel, Mr. Kambona and Mr. Mnaku, offered to provide two boats to be used by the. Police Officers to conduct the search and seizure of the alleged stolen fishnets from the Islands. It was the further testimony of DW2, that, on the 1 st _day of December, 2007, . ~ Page 9 of 17 ( the Police. Officers boarded the two boats they had been offe.red by the . . . fishermen and started the exercise of searching and seizing the alleged stolen fishnets in the Islands. DW2 stated further that, at the Isinde Island · they saw three paddled· boats with .fishnets inside them. That, upon . . arriving at .the Isinde Island, Mr. Kambona and Mr. Samwel identified their fishnets. That, upon being asked as to who was the owner of the three boats, the persons whom they met there answered that, the boats belonged to· Edmund Ngeni (the Plaintiff herein). DW2 stated further that, unfortunately, Edmund Ngeni was not there and thus, the Supervisor of the boats, one sa·tari Bahebe Ngeni was arrested and the· thre~ boats with the alleged stolen fishnets inside them were dragged with ropes to the Kabiga Camp for identification. DW2 stated further that, one of the citizens who had assembled at the Kabiga Camp identified fishnets buoys inscribed with the mark "SOWETO" which belongs to one Mr. Mjanja Nagagwai (the Defendant herein) and therefore offered to call Mr. Mjanja Nagagwa who rushed to the· Kabiga Camp for the identification exercise. DW2 stated further that on the 2 nd day ,of December, 2007, Mr. :Mjanja Nagagwa arrived at the Kabiga Camp and managed to identify his nine (9) fishnets, which Mr. Mjanja alleged that they had been stolen from his camp. DW2 stated further that based . . on this evidence, it was therefore justifiable for the prosecution to institute the said prosecution against the Plaintiff. It is pertinent to note here that, the Plaintiff was charged at, convicted of and sentenced by the Sengerema District Court in Criminal· Case No. 233 of 2007 but was acquitted by the High Court on appeal in Criminal Page 10 of 17 ~ Appeal No. 80 of 2011 on one main ground that, the chain of custody of the seized fishnets was not complete and the evidence was not watertight to found a conviction against the Plaintiff. Thus, the Plaintiff was acquitted on among . other grounds, procedural technicalities. In his· cl_osing submissions, Mr. Njelwa learned Counsel for the Plaintiff cited to this •Court the decision in the case of Hosia Lalata vs. Gibson Zumba [1980] TLR .1.54 where at page 156 of that decision it was held that, the Appellant in that case had falsely informed the Police that the Respondent in that case had demanded a bribe from him, which is not the case before this Court. In the instant case, the alleged stolen fishnets were found at the Plaintiff's . premises and se.izeq by the Police Officers. Since the Defendant's stolen fishnets were found and seized in the Plaintiff's boats, it was more probable than not that the fishnets were stolen by the Plaintiff. In his closing submissions Mr. Njelwa also referred this Court to the book of "Winfield & Jolowiz on Tort' 13th Ed, Sweet & Maxwell {London) 1989 at pages 545-547 where the three essential elements which need to be proved for a malicious prosecution case to succeeds are stated, · namely that, {i) there must be a prosecution {ii) favourable termination of the prosecution and {iii) lack of reasonable and probable cause. Furthermore, in his closing submissions Mr. Njelwa also referred this Court to the decision in the case of Nicodemus Nyambuya v. Hamisi Ramadhani [.1.995] TLR 11Bwhere it was held that; "... .according to the record of the Trial Court malice is not ingredient of the tort of malicious prosecution; ·it is enough if the Defendant had no reasonable and probable cause to prosecute the Plaintiff. The trial Court ~~ Page 11 of 17 correctly found as a· fact that the Defendant had no reasonable and probable cause to prosecute the Plaintiff. "· On the other hand, Mr. Mhozya, learned Counsel for the Defendant, in his closing submissions referred. this Court to the decision in the case of· .Jeremiah Kamama vs; Bugomola Mayandi[.1.983] TLR 123, (n which it was stated that, the Plaintiff must prove simultaneously that, (a) he was prosecuted (b) that the proceedings complained of ended in his favour (c) that the defendant instituted the proceedings· malicious(y ( d) that there was no reasonable and probable cause for such prosecution/ and (e) that damage was occasioned to the Plaintiff. Mr. Mhozya also submitted further . that, in the case 9f Mafumba Jilawc!Ji v. Budu Mnyagolya [1992] T.L.R it was stated that; '~ .. .it was self-evident that the Respondent was completely unconnected with the initial arrest, detention and the decision whether or not formally charge the Appellant before a court of law. The suit was frivolous and the appeal should be dismissed with costs." In his closing submissions, Mr. Mhozya went further by referring this Court to the decision in the case of Bhoke Chacha v. Daniel Misenya [1983] T.l.R. 329where it held that; · '~ ... the fact that the appellant was subsequently acquitted does not establish that the original complaint was false and malicious/ it was for the appellant to prove that the Respondents report was malicious and that it was made without any reasonable or probable cause." Finally, Mr. Mhozya referred this Court to the case of Leonard Ghatti Magana v. The Attorney General, Civil Case No. 1~ of 20.1.2, High Page 12 of 17 ~ Court of Tanzania at -Mwanza (unreported) where it was held by this Court [Makaramba, J.] that; " ... the· mere fact that the Plaintiff was finally acquitted of the charges for- . the prosecution failing to establish a piima. facie case against the . . Plaintiff is not in itself sufficient to establish malice on the part of the Defendant" In the instant suit, it is the finding of this Court based on the evidence on record and particularly the testimony by DW2 that, there existed a_ probable and reasonable cause for the Plaintiff to be arrested and prosecuted based on the fact that, the aHeged stolen fishnets inscribed with the mark "SOWETO", were fou.nd in the Plaintiff's fi_shing boats. The Plaintiff never stated if he had been using or being identified by the mark "SOWETO." As it was succinctly stated in the Bhoke Chacha v. Daniel Misenya [1983] T.l.R. 329 and as further stated by this Court in Leonard Ghatti Magana vs. The Attorney General, {above} and based on the various authorities cited by the learned Counsel in their respective closing submissions, the mere fact that the Plaintiff was subsequently acquitted by the High Court in Criminal Appeal No. 80 of 2011, which .as I pointed out in this Judgment was on procedural technicalities, does not establish that the original complaint was false and malicious. If was for the Plaintiff to prove that the report by the ·oefendant about the stolen fishnets was malicious and that it was made without any reasonable or probable cause, which burden the Plaintiff has failed to disc;harge to the required standard on a balance of probabilities._ Page 13 of 17 It is for the above reasons that, the second issue whether there was no ·Justifiable and probable cause in instituting . the saidprosecution fails. and it is hereby also answered in the negative. · . . The third i_ssue for determination. by this Court in this suit is whether the . Plaintiff suffered any damages as a result of that prosecution. At the trial PWl · stated that, at his premises, the Police Officers seized fishnets together with two jerry cans with 60 litters of petrol and filter in pipe used to fill jerry cans with petrol. According to the plaintiff the ·seized fishing nets were 228 each worth 75,000/= which makes a total claim of Tshs.17, 000, 000/=. The filter in pipe is worth Tshs.120,000/~, and the 60 liters of petrol were worth T~hs.120,000/ = and. the jerry cans were worth Tshs.90,000/ =. According to the Plaintiff, the receipts for all such ·items were destroyed by the fire which engulfed his fish camp. On the evidence of PWl, this Court finds that, and as I intimated to earlier in this Judgment, at the time the Police Officers seized the Plaintiff's properties at the Plaintiff's. camp, the Plaintiff was not present and did not therefore witness the alleged items he alleges that were seized being seized by the Police Officers. It was PW2 who witnessed the seizure. · According to PW2, the Police Officers seized fishnets, whose number was not stated; petrol jerry cans of 60 litres of whose numbers was not stated, and three tanks. In his testimony PW2 did not state if the Police Officers also seized the filter in pipe. However, in their respective testimonies PW1 and PW2 both talk about the items which had been seized by the Police Officers at the Plaintiff's camp on the 31 st day of December, 2007, which as I pointed out earlier in this Judgment, i_t is not the case at hand. . ~ Page 14 of 17 his various properties· by the. Police at his premises. The Plaintiff has therefore failed to prove special damages incurred in respect of the properties .alleged to. have been seized by the Police on the 1 st .day of · December, 2007. In this suit,· the Plaintiff is also claiming for the loss lie sustained after . being deprived the ·right to use the alleged seized fishnets for which he alleges that he was capable of landing a fish catch of about 400 Kgs. of fish per day and that he was selHng a kilogram of fish catch at a price of · . . Tshs.3,000/=. And therefore per day he could earn Tshs. 1,200,000/= by selling the 400 kilograms of fish. The Plaintiff maintains further that in a. mo~th he could have earned Tshs.36,000,00~/= and in a year h~ could have earned Tshs. 432,000,000/=. Thus, for the six years and six months, the Plaintiff has suffered a loss of Tshs.3,041,640,000/ =. Unfortunately, the Plaintiff never produced any· record of accounts showing that the seized fishnets were capable of landing fish catch of 400 kgs. per day. The Plaintiff failed even to produce any record of accounts showing the kilograms of fish. he had been catching per day. As it would appear the claim by the Plaintiff of landing a fish catch of 40d kgs. per day was a mere statement unsupported by any evidence to prove it. It is for these reasons that, the claim by the .Plaintiff for loss in profit incurred per day fails and it is hereby dismissed. In this suit the Plaintiff has also prayed for payment of general damages for malicious prosecution and false imprisonment to be assessed by this Court. In my considered view, the Plaintiff having failed to prove his case that he was maliciously prosecuted the prayer for general damages is of no . Page16of17 . ~· ,.'J consequence and cannot be granted by this Court .. The same position .applies to the prayers by the Plaintiff for the payment of interests at both commercial and Court rates. In. any event, the prayer for i:>ayment of· interest at the Court rates of 12% and 25% per annum respectively is on· the higher side and violates the provisions of Order XX rule 21 of the Civil · Procedure Code of which the rate "shall not exceed 12% as the parties may expressly agree in writing before or after the delivery of the judgment oras maybe adjudged by consent/' which is not the case at hand. The last issue is on the reliefs the parties in this suit are entitled to. As I intimated to ·earlier in this Judgment, the Plaintiff havi11g failed to prove hi$ · case on the balance of probabilities, . consequently, . all of the prayers as set out by Plaintiff in his Plaint fail and cannot be granted by this Court. In his Written Statement of Defence, the Defendant prayed that the suit be dismissed with costs. Considering that Plaintiff has fai1ed to prove his case against the Defendant, this Court shall grant the Defendant's prayers. In the whole and for the above reasons, the Plaintiff's case fa.ils. It is hereby dismissed with costs. It is so .ordered. R.V. MAKARAMBA · JUDGE 04/08/2017