CHIWANGA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC CIVIL APPEAL NO. 29 OF 2023 (From the District Court of Mpwapwa in Civil case No. 4 of 2022) GODWIN CHIWANGA...................................................... APPELLANT VERSUS MBIPILE MARTIN....................................................... RESPONDENT JUDGMENT Last Order: 12th August, 2024 Date of Judgment: 6th September, 2024 MASABO, J.:- This appeal arises from the judgment and decree of the District Court of Mpwapwa (the trial court) in Civil Case No. 4 of 2022 in which the appellant unsuccessfully sued the respondent for malicious prosecution. He was claiming TZS 1,650,000/= and TZS 13,700,000/= being specific damages and general damages, sustained as a result of the malicious charges levelled against him by the respondent in Criminal Case No. 30 of 2021 before the Primary Court of Mpwapwa at Chipogoro. The background of the case is not hard to establish. As per the court record, the kernel of the matter is a theft incident allegedly committed by the appellant on 4th July 2021 at 15.30 hours. The respondent alleged that he arrested the appellant on his farm stealing maize. With the assistance of Page 1 of 11 DW2, the respondent took the appellant to the Village Executive Officer (VEO). While there, the appellant confessed to having stolen the maize. He was then handed over police station. Later on, he was arraigned before Chipogoro Primary Court charged with the offence of theft. In his defence to the charges levelled against him, he told the court that he was not a thief. The respondent had gone at his farm to buy maize stalks but, as they were leaving the farm he turned hostile. He ambushed him, severely assaulted him and forcefully led him to his farm. After they arrived, the respondent maliciously accused him to have stolen his maize. At the end of the trial, the trial court found the respondent to have not proved the charge and it acquitted the appellant. After the acquittal, the appellant filed the suit of malicious prosecution. He alleged that the respondent had no reasonable or probable cause to place the charges against him as there was no theft. The whole incident was fabricated. He relied on his testimony as PW1 and the testimony of PW2 to convince the court to hold in his favour that his arrest and prosecution was without a reasonable cause. Together, they told the court that on the material date at between 16:30 to 17:00 hours the parties were at the appellant's farm harmoniously transacting on maize stalks. That, it is incomprehensive how he could have stolen from the respondent at 15:30. He also relied on the evidence of PW3 and the judgment in criminal trial "Exhibit P.E.2" to show that the charges were actuated by malice as there was a grudge between him and the respondent. Page 2 of 11 On his part, the respondent maintained that he found the appellant stealing maize on his farm at 15:30. He arrested him and with the help of DW2, he took him to the VEO. The trial court found the appellant to have not sufficiently discharged his burden of proof and dismissed the suit. Disgruntled the respondent has knocked on the doors of this court armed with an appeal based on five grounds of appeal which I summarise as follows: One, the trial court wrongly ignored the reasons for his acquittal as set out in Exhibit P.E 2. Two, the trial court erred in finding that the respondent a had reasonable and probable cause in instituting criminal proceedings against the appellant. Three, the trial magistrate erred in holding that the institution of the criminal case against the appellant was not malicious. Four, the trial court erred when it failed to consider and appreciate the testimony of PW2 who found the appellant and the respondent at the farm. Five, the trial magistrate erred in not considering the evidential value of the answers given by the respondent (DW1) during his testimony in Criminal Case No. 30 of 2021. Six, the trial court erred in law and fact in not considering the contents of exhibits P.E 2 on the credibility of testimony SU2. Hearing of appeal proceeded by way of written submissions ex-parte the respondent after the efforts to procure his attendance in court turned futile. The appellant's submission was drawn and filed by Mr. Moses Cyril Masami, learned counsel. Page 3 of 11 Submitting in support of the appeal, Mr. Masami abandoned the fifth and sixth grounds of appeal. He then submitted on the first and second grounds of appeal that the trial court erred in determining in favour of the respondent while banking on minor contradictions in the appellant's testimony. Such contradictions was wrongly used to justify the finding that there existed a reasonable and probable cause for the prosecution. He argued further that, the court ignored the facts relevant to proving the non-existence of a probable cause for the prosecution. The evidence so ignored includes the contents of Exhibits P2 which proved that the appellant was maliciously prosecuted and the fact that the respondent did not appeal against the acquittal. It was passionately argued that had the trial court considered the finding of the primary court it would have arrived at a conclusion favourable to the appellant because, the primary court being the trial court for the criminal case was best positioned to see, hear and appreciate the evidence of the parties when determining the criminal case filed against the appellant and which concluded in its decision, that the case against the appellant was a scheme intended to implicate him in the charges of theft. Mr. Masami proceeded to submit that the respondent had no reasonable and probable cause in instituting criminal charges against the appellant as it was not possible for the appellant to be at the respondent's farm stealing maize in broad daylight. Also, as per the testimony of PW2, he saw the parties at the appellant's farm negotiating the sale of maize stalks. All this supports the Primary Court's observation that the case was a planned scheme and it connotes that the respondent had an ill motive when instituting the said criminal charges against him. Page 4 of 11 It was submitted further that, in respect of the third ground of appeal, that the respondent and his rich friends were not contended by the appellant's conduct of ceasing their cattle and this was the reason why, when assaulting him, and repeatedly asked him when will he stop ceasing their cattle. On the fourth ground, it was submitted that the trial court erred in law and fact when it failed to consider and appreciate the evidence of DW2 whose evidence was untrustworthy and questionable. He argued that it was not expected for the said witness to testify that he found the appellant with a sulfate bag having maize while he did not see or verify the said bag to have maize in it. Again, it was argued that it was impossible that DW2 stopped the search for his lost cattle and went to the respondent's farm. In conclusion he invited this court to allow the appeal, quash and set aside the judgment and decree of the trial court. I have dispassionately considered the submissions alongside the trial court record. The main issue for determination is whether this appeal has merit. Before moving on to the grounds of appeal which will ultimately answer this issue, I find it apposite to state at the outset that, this appeal being a first appeal is akin to a rehearing. I am, therefore, enjoined to examine the evidence on record so as determine whether the findings and conclusions reached by the trial court stand. This is a cardinal principle as stated by the Court of Appeal in Rashidi Abiki Nguwa vs Ramadhan Hassan Kuteya and Another, Civil Appeal No. 421 Of 2020 [2021] TZCA 658 TanzLII; Standard Chartered Bank of Tanzania Ltd vs National Oil Tanzania Ltd and Another, Civil Appeal No. 98 of 2008 [2003] TZCA 228 TanzLII Page 5 of 11 quoted in The Registered Trustees of Joy in the Harvest vs Hamza K. Sungura, Civil Appeal No. 149 of 2017 [2021] TZCA 139 TanzLII. The legal principles governing the tort of malicious prosecution were well stated in the case of Jeremiah Kamama vs Bugomola Mayandi [1983] TLR 123. According to this case, for a suit for malicious prosecution to succeed the plaintiff must, simultaneously, prove that: first, that he was prosecuted; secondly the proceedings complained of ended in his favour; thirdly, the defendant instituted the prosecution maliciously; fourthly, there was no reasonable and probable cause for such prosecution and fifthly, he sustained damages as a result of such prosecution. Cementing this position, the Court of Appeal in the case of North Mara Gold Mine Limited vs Joseph Weroma Dominic Civil Appeal No. 299 of 2020 [2022] TZCA 2 TanzLII endorsed the position it held in the case of Yonah Ngassa v. Makoye Ngasa [2006] T.L.R. 123 where while referring to Salmond and Heuston on the Law of Torts, 21st Edition at page 393, stated that a party suing for malicious prosecution must prove the following ingredients:- 1. That the proceedings were instituted or continued by the defendant; 2. That the defendant acted without reasonable and probable cause; 3. That the defendant acted maliciously; and 4. That the proceedings terminated in the plaintiff’s favour. See also the cases of Hosia Lalata vs Gibson Mwasote [1980] TLR 154 and Sugar Board of Tanzania vs Ayubu Nyimbi and Others Civil Appeal Page 6 of 11 No. 53 of 2013 [2016] TZCA 841 TanzLII. Each of the above listed ingredients must be proved as stated by the defunct East African Court of Justice in Mbowa v. East Mengo Administration [1972] EA 353 where it was held that: "The plaintiff in order to succeed all the four essentials or requirement of malicious prosecution as set out above out above, have to be fulfilled and that he has suffered damage. In other words, the four requirements must "unite" in order to create or establish a cause of action. If the plaintiff does not prove them he would fail in his action." Being attentive to these principles, the trial court found the appellant to have proved the existence of the proceedings initiated against him by the respondent and the termination of such proceedings in his favour. However, it found him to have failed to establish that by instituting the criminal charges the respondent acted without reasonable and probable cause and was actuated by malice. The later finding has disgruntled the appellant and he has beseeched this court for reversal. His passionately argument as depicted in the summary of the submissions is that had the trial court objectively assessed the evidence before it, it would have positively determined these two elements. I will start with the argument that the respondent had no reasonable and probable cause in instituting the criminal charges against the appellant. In the case of Wilbard Lemunge vs Father Komu & Another Civil Appeal No. 8 of 2016 [2018] TZCA 195 TanzLII the Court of Appeal explained what Page 7 of 11 a reasonable and probable cause encompasses in a malicious prosecution case, and I quote: We are strongly persuaded by the writings of the learned authors Ratantal and Dhirajlal in the Law of Torts (supra) at page 317, which we adopt that, the defence of reasonable and probable cause, can be availed by an accuser (defendant), upon establishment of four factors namely: One; an honest belief of the accuser in the guilt of the accused (plaintiff); Two; Such belief must be based on an honest conviction of the existence of circumstances which led the accuser to that conclusion; Three; the belief as to the existence of the circumstance by the accuser, must be based upon reasonable grounds that, such grounds would lead to any fairly cautious person in the accuser's situation to believe so. Four; the circumstance so believed and relied on by the accuser, must be such as to amount to a reasonable ground for belief in the guilt of the accused person. Needless to emphasize, as the law places the burden of proof on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, it was upon the appellant to lead evidence to substantiate that he did not steal the respondent's maize and was not at the respondent's farm on the alleged time and date. This was very crucial considering that, unless proved otherwise, the respondent's allegation constituted a reasonable ground warranting a belief in the appellant's guilt and would lead any reasonable or a fairly cautious person to institute the criminal charges. Did the appellant discharge his duty? Page 8 of 11 In my scrutiny of the record, I have observed that the appellant relied on his oral testimony and that of PW2 which was to the effect that on the same day at around 16:30 to 17 hrs, the parties were at the appellant's farm harmoniously transacting on maize stalks. PW2 saw them and having greeted them and asked them what they were doing he left the place. This evidence however, sharply contrasted with the respondent's evidence (DW1 and DW2) which was to the effect that, the parties were at the respondent's farm at around 15:30 and 16:00 and they were eye-witnessed by DW2 who went to the respondent's farm in response to the alarm which the respondent had raised after he found the appellant stealing his maize. As per these two witnesses, the parties did not go to the appellant's farm thereafter. Rather, they took the appellant who was then under restraint to the VEO. These two sets of evidence suggested that one of the parties lied to the court as it is incomprehensible that the parties went to appellant's farm and had a harmonious transaction one hour after the theft incident. Considered as a whole, the circumstances of the case required the appellant to unravel the doubt by leading more evidence in his favour. As the time of the commission of the alleged crime was of great essence, it was crucial for him to lead more evidence to corroborate his and PW2's story which suggested that he was not at the respondent's farm at the alleged time but he did not. Here, I have in mind the testimony of the persons who were with him at around 15:30 and 16:00hrs, if any, or in the alternative, the testimony of the VEO. In my firm view, much as the VEO was not at the scene of the alleged crime, he was a material witness. Among other things, he could have told the court the time at which he was notified of the incident, the time at Page 9 of 11 which the appellant was taken to his office, the condition of the appellant when he arrived at his office, and whether or not he confessed to the crime as alleged. This would have helped the court to ascertain who between the parties was trustworthy. Surprisingly, and for the reasons best known to the parties, this witness was neither paraded in the malicious prosecution case nor in the criminal case. It is cardinal law in our jurisdiction that, much as a party is at liberty when it comes to the number of witnesses, all material witnesses to the case must be paraded and the failure to parade them attracts an adverse inference against the party who ought to have called them, in this case, the appellant. An inference is therefore drawn that the omission to parade this material witness was purposely done in concealment of a fact which would have been adverse to the appellant's case. An adverse inference is further drawn from the appellant's failure to tender the court proceedings in the criminal case which would enabled the court to compare the evidence adduced by the parties in both proceedings hence unravel the doubts. I have also observed while reading through the judgment in the criminal case that, while at the VEO's office the appellant was asked, in the presence of the PW3 (Yuda Matatula), whether he was found with the maize and he admitted to have been found with the same (page 3 of the judgment). The revelation offsets the argument that DW2 did not see the maize the considering also that there was no dispute that the allegedly stolen item was maize. Further scrutiny of the record has shown that the allegations made by the appellant when testifying as PW1 before the trial court were possibly Page 10 of 11 a far exaggeration of his narration in the criminal proceedings as summarized on pages 4 and 5 of the judgment and this puts to question the credibility of his allegations. Further to the above, I have found numerous gaps in the appellant's evidence. For instance, and as correctly observed by the trial magistrate, the appellant claimed that he was severely assaulted and that the police ordered the respondent to take him to hospital but he led no medical report in support and no explanation was rendered as to the omission of this crucial evidence which would have corroborated his story that the respondent ambushed him and severely assaulted him before forcefully leading him to his farm where he fabricated the theft incident. In the foregoing of what I have demonstrated, I find no fault in the trial court's finding that the appellant failed to substantiate that when the respondent instituted the criminal charges against him he had no reasonable and probable cause and he did so with malice. I therefore, desist the prayer to reverse the finding of the trial court as, in addition to what I have stated above, I have entertained all the doubts entertained by the trial magistrate. Accordingly, all the grounds of appeal fail for want of merit. I uphold the decision of the trial court and, in consequence, dismiss the appeal without costs as it proceeded exparte. DATED and DELIVERED at DODOMA this 6th September 2024 Page 11 of 11