hamida hamisi vs the principle magistrate of mbagala primary court 2 others 2018 tzhc 27 23 february 2018

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 192 OF 2011 j HAMIDA H A M ISi:..................... ........ ......... ............... ...... PLAINTIFF VERSUS THE PRINCIPAL MAGISTRATE OF MBAGALA PRIMARY C O U R T ........................................ 1st DEFENDANT HAMISA SALUM UBUGUYU........................ .................. 2nd DEFENDANT THE ATTORNEY GENERAL..................................... ........ 3 rd DEFENDANT 14/ 12/ 2017&23/ 02/2018 JU D G M E N T M W A N D A M B O , J:- This is a suit for damages against the Defendants for the alleged misfeasance claimed to have been committed by the 1st Defendant in collusion with the 2nd Defendant in execution of a judgment of the Primary Court of Mbagala in case No. 112 of 2005. The suit is strongly resisted by all Defendants. The facts leading to the suit are as follows. The 2nd Defendant successfully sued the Plaintiff before the Primary Court at Mbagala in case No. 112 of 2005.The said suit was recovery of Tshs. 1,132,600/= but the said court adjudged the Plaintiff to pay Tshs. 883,000/= in a judgment delivered on 21 July 2006. The Plaintiff's attempt to challenge that judgment ended in vain for her appeal to the District Court of Temeke in civil appeal No. 20 of 2007 was dismissed thereby upholding the judgment of the trial primary court. i Subsequently, Kam Commercial Services attached the Plaintiffs house No. 0033 Mbagala kuu in execution of a decree for Tshs 16,417,722/= and the said house was eventually sold whereby Sameer Sadiq Mohamed emerged the successful purchaser. The sale was followed by a proclamation of sale and thereafter the purchaser gained possession after a forceful eviction of the tenants therein who included PW3. Following the sale, the 2nd Defendant (decree holder) parted with Tshs. 16,417,722/= out of a decree for Tshs. 883,000/= per judgment of the Primary Court. In protest against the eviction, the Plaintiff has instituted the instant suit against the 1st Defendant for the alleged abuse of power in allowing execution of a decree which was at variance with the judgment in case No. 112 of 2005. As against the 2ndDefendant the Plaintiff states at para 18 of the amended plaint as follows: "T h a t t h e 2nd Defendant is equally liable fo r abetting the said tortious acts o f the 1st defendant since she know ingly and fo r her own ends induced the 1st defendant the actionable act, to w it m isfeasance in p u b lic office, and who is liable b y lia b ility abetm ent/' Arising from the forgoing the Plaintiff prays for judgment and decree against the Defendants for Tshs. 200,000,000/= damages for misfeasance in public office to be paid by the Government, Tshs. 100,000,000/= damages for liability by abatement payable by the 2nd Defendant, interest, costs and any other reliefs. Not amused, the Defendants deny any liability to the Plaintiff. Specifically, the 2nd Defendant distances herself from any wrong doing in the execution of a decree lawfully passed in her favour by Mbagala Primary Court and prays for the 2 dismissed of the suit. Before the commencement of the hearing, the court framed the following issues:- 1. W hether the Plain tiff's eviction from the house No. 0033 Mbagaia Kuu was a result o f any w rongful and/or fraudulent order b y the first defendant 2. W hether the P la in tiff has any cause o f action against the 2nd Defendant 3. W hether the P la in tiff suffered any dam ages as a result o f any w rongful acts o f the Defendants ( if any). 4. W hat reliefs are the parties entitled to. The Plaintiff prosecuted her claim in person. Besides her own evidence, which was by and large a chronology of events narrated in the amended plaint, she called two more witnesses namely; Azizi Mohamed Omari (PW2) and Primus Kiiza (PW3). PW2 introduced himself a Plaintiff's husband whose evidence was essentially a repeat of what PW1 had stated in her evidence. PW3 was a tenant in the Plaintiff's house attached and sold in execution of a decree at the instance of the 2nd Defendant. This witness testified on how he became aware of the case against the Plaintiff instituted by the 2nd Defendant and how he and his fellow tenants were evicted by force from the Plaintiff's house No. 0033 Mbagaia kuu. Subsequent to the impugned eviction, PW3 facilitated the Plaintiff with institution of the suit by accompanying her to a lawyer. Apart from the oral evidence, the Plaintiff tendered a number of exhibits in an attempt to prove her case namely; a certified copy of judgment of the Primary Court in case No. 112 of 2005 (exhibit PI), Notice to pay the decretal amount and warrant of attachment (exhibit P2 collectively) warrant of sale dated 15 July, 2008 (Exhibit P3), Notice from Sameer Sadiq (exhibit P4). In cross-examination, PW1 was forced to tender a letter from the Registrar of the High Court dated 07 May, 2013 (exhibit Dl). With that testimony, the Plaintiff closed her case and prayed for judgment for reliefs set out in the amended plaint. 3 Fatuma Hamisi Mgendwa (DW1) was a Primary Court Magistrate in charge of Mbagala Primary Court testified on behalf of the first and 3rdDefendants. PW l's duties included hearing of cases and supervision of execution of decrees. Although she became the Primary Court Magistrate In-charge of Mabagala Primary Court post the judgment, she confirmed the existence of a judgment in case No. 112 of 2005 through perusal from case files. DW1 denied having seen any letter from the decree holder (2nd Defendant) applying for execution according to the procedure obtaining in such instances. It was her evidence that since the decree holder (2nd Defendant) her court never dealt with any execution of the decree and the document titled H a ti ya kukam ata m alt kwa kutim iza Hukum u (exh. P2) was not issued by her court. In any case DW1 stated, document was a forgery because the amount shown as a decretal sum was at variance with the judgment by which the Plaintiff was required to pay to the 2nd Defendant Tshs. 883,000/= compared to Tshs. 16,417,722/= appearing in exhibit P2. DW1 denied the existence of any document by way exh. P2 in the court file. According to her, had there been any application for execution of the judgment by way of attachment and sale of the judgment debtor's property, the Primary Court had no power to appoint a court broker rather make a written request to the District Court Magistrate incharge for appointment of a Court Broker as is ordinarily the case. Commenting on the warrant of sale of property (exhibit P3), DW1 stated that the name of the Magistrate who signed it was lacking neither did she come across any such document in the case court file in her office. It was D W l's further evidence that licensing of Court Brokers for execution of court decrees is done by the Registrar of the High Court and that according to exh. D l, Kam Commercial Services said to have been appointed to execute the decree was not one of the licenced Court Brokers and so the District Court Magistrate in- charge could not have appointed an unlicensed person to 4 execute the decree. With that evidence DW1 denied any wrong doing in the attachment of the Plaintiff's house and prayed for the dismissal of the suit against the 1st and 3rd Defendants. Hamisa Salum Ubuguyu (DW2), the second Defendant was the last defence witness who adduced her evidence led by Ms. Proscovia learned Advocate. Her evidence was to the effect that she was a successful party in case No. 112 of 2005 against the Plaintiff who lost again on appeal to the District Court in Civil Appeal No. 20 of 2007 before M. S Mnzava, PDM in a judgment delivered on 31 December 2007. A certified copy of the judgment in appeal 2007 before M. S Mnzava, PDM delivered on 31 December 2008 was admitted as exh. D2. It was her testimony that following the dismissal of the Plaintiff's appeal she went back to the District Court for enforcement of her decree and the presiding Magistrate in appeal assisted her by facilitating the process which entailed filling in execution forms followed by payment of the necessary fees. After that process, DW2 stated that the District Court Magistrate advised her to go back to Mbagala Primary Court where she met a Magistrate called Kioja different from the trial Magistrate who asked her to provide a telephone contact number and advised her to leave waiting for a call on payment of the decretal sum. It was DW2's further testimony that on 29 August, 2008, she went to Mbagala Primary Court in response to a call from the Primary Court Magistrate in charge who gave her Tshs. 16,417,722/= cash in her office as her entitlement from the decree and left. Apart from admitting payment of a sum far above the decretal amount in case No. 112 of 2005, DW2 told the Court that she never filled the execution forms herself rather, it was the District Court officers before which she lodged an application for execution and paid the requisite fees. DW2 distanced herself from exh. P2 and P3 which she claimed not to have seen any time before. Whilst admitting that apart from the decree for Tshs 883,000/= 5 passed by the Primary Court in case No. 112 of 2005, she contended that the amount she was ultimately paid included interest computed by the officers of the District Court. Answering questions from the Court DW2 admitted to have provided the particulars of the Plaintiff's property for attachment before the Primary Court Magistrate incharge at Mbagala. All in all DW2 denied having done anything wrong other than pursuing her lawful entitlement from the decree in case No. 112 of 2005 and prayed for the dismissed of the suit. DW2's evidence marked the end of the trial paving a way to closing submissions which were made in writing. I will highlight the substance of the submissions hereunder. The first issue seeks to investigate whether the eviction of the Plaintiff from her house No. 0033 Mbagala Kuu was a result of any wrongful and/or fraudulent order by the 1st Defendant. Ms. Grace Lupondo, learned State Attorney invited the Court to answer the issue negatively because the Plaintiff has failed to discharge her burden of proof as required of her by sections 110(1) and (2) and 111 of the Evidence Act, Cap [RE 2002]. In amplification, the learned State Attorney argued that apart from the judgment of the Primary Court in case No. 112 of 2005 (Exh. PI) the rest of the documents relied upon by the Plaintiff did not originate from the 1st Defendant as testified by DW1 and for that reason she urged the Court to find and hold that the 1st Defendant's hands were clean and thus the Plaintiff's claim should fail. The learned Advocate for the 2nd Defendant submitted in defence of the genuineness of the documents leading to the attachment and sale of the Plaintiff's house. The learned Advocate argued that the said documents namely; exhibits P2 and P3 were validly issued by the 1st Defendant and if there was any forgery in any of them there was no evidence on the required standard to prove not only the forgery but also the perpetrator of it. In support of the argument, the learned Advocate sought refuge from 6 Hidaya Ilanga v„ Manyama Manyoka [1961] EA 705 for the proposition that in all cases where an allegation is made in civil cases akin to a crime such as fraud, proof must be more than mere balance probabilities. A similar reference was made to Omary Yusufu V. Rahma Ahmed Abdulkadr [1987] TLR 169 on the extent of proof required in cases where a party in civil proceedings makes allegation that someone has committed a crime. It was thus her submission that the Plaintiff has not led sufficient evidence to prove forgery against the 1st Defendant in relation to the eviction from her house and so the Court ought to answer the first issue in the negative. The Plaintiff who had no legal representation urged the court to determine the first issue in her favour. According to her, there was strong evidence to prove that the eviction from her house No. 0033 Mbagala Kuu was a result of wrongful and fraudulent order by the 1st Defendant. The Plaintiff strongly submitted that exhibits P2 and P3 proved her case to the required standard that the 1st Defendant made wrongful and fraudulent orders whilst at the same time arguing that the documents were forgeries ad not part of Primary Court's record in case No. 112 of 2005. Having summarized the evidence and arguments for and against, I now turn my attention to the discussion of the first issue. It is clear from the pleadings that the Plaintiff's suit is founded on the tort of misfeasance in public office. The term misfeasance is defined by Black's Law Dictionary as follows: ", a la w fu l a ct perform ed in a w rongful m anner 2 m ore broadly a transgression o r trespass. " Misfeasance in Public office is defined thus:- 7 "The a c t o f excessive m alicious o r n eg lig en t exercise o f statu tory p o w er b y a P u b lic O fficer. . . ” See: Black's Law D ictionary 8th Edition by Brian A. Garner a t page 1021. My research on authorities on the subject has landed me to an English case in Three Rivers District Council and others v Bank of England (No 3) [1996] 3 All ER 558 in which Clarke, J held inter alia from the head note at page 558: " The tort o f m isfeasance in p u b lic office was concerned with a deliberate and dishonest w rongful abuse o f the pow ers given to a p u b lic officer and the purpose o f the tort was to provide com pensation fo r those who suffered loss as a result o f im proper abuse o f power. I t was n o t to be equated with torts based on an intention to injure, although it had som e sim ilarities to them. The to rt co u ld be established in tw o alternative ways: (a) where a p u b lic o ffice r perform ed o r om itted to perform an a ct with the o b ject o f in jurin g the P la in tiff (i.e. where there was targeted m alice); a n d (b) where he perform ed an a ct which he knew he h a d no p ow er to perform an d which he knew w ould injure the Plaintiff. Accordingly, m alice, in the sense o f an intention to injure the P la in tiff o r a person in a class o f which the P la in tiff was a member, and know ledge b y the o fficer both that he had no pow er to do the a ct com plained o f and that the a ct or om ission w ould probably (but n o t that it w ould necessarily o r inevitably) injure the P la in tiff o r such a person, were alternative, not cum ulative, ingredients o f the tort. .... "(em phasis added) 8 That decision was approved by the House of Lords on a further appeal from the Court of Appeal which had upheld the High Court decision. The House of Lords expressed itself in Three Rivers District Council and others v Bank of England (No 3) [2000] All ER 1 inter alia: " . . . The tort o f m isfeasance in p u b lic office had two forms, nam ely (i) cases where a p u b lic pow er was exercised fo r an im proper purpose w ith the sp e cific intention o f injuring a person o r persons, a n d (ii) cases where a p u b lic o ffice r a cted in the know ledge th a t he h ad no p o w er to do the a ct com plained o f an d th a t it w ould p rob ab ly injure the cla im a n t In the second category o f cases, an a ct perform ed in reckless indifference as to the outcom e was su fficien t to ground the to rt Recklessness in that sense was subjective recklessness, and thus the claim ant had to prove that the p u b lic o fficer acted with a state o f m ind o f reckless indifference to the illeg ality o f h is act..." (em phasis added a t page 1). Applying the foregoing to the instant case, to succeed, the Plaintiff must prove that the 1st Defendant exercised his power in execution of the decree in Case No 112 of 2005 for an improper purpose with the specific intention of causing injury to the Plaintiff. There is no dispute in this suit that the Plaintiff was evicted from her house No. 0033 Mbagala Kuu purportedly as a result of execution of a decree in case No. 112 of 2005 in which the 2nd Defendant obtained a judgment for Tshs. 883,000/= against the Plaintiff. The evidence of DW1 which was not controverted shows clearly that: One, the 2nd Defendant never applied for execution of the decree in her favour in case No. 112 of 2005 which would have resulted in the trial Court summoning parties for that purpose. Indeed, as the record will show through exhibits P2 and P3, the said execution 9 was carried out as a result of a decree of the Primary court issued on 3 June 2008 in case No. 112 of 2005. However, it is clear from exhibit PI that there is no other decree of the Primary court involving the Plaintiff and the second Defendant is than the one entered on 21 September 2006 through exh. PI. That decree was a subject of an appeal in civil appeal No. 20 of 2007 which was determined against the Plaintiff on 31 December 2007. Two, the Primary Court never issued any document by way of Hati ya kukamata mali kwa kutimiza hukumu (exh. P2) on the dates indicated or at all. Three, exhibit P2 shows the decretal sum to be Tshs. 16,417,722/= which is different from the judgment of the Primary Court which ordered the Plaintiff to pay the 2nd Defendant Tshs. 883,000/=. Four, the court Broker by the name of Kam Commercial Services ordered to execute a decree against the Plaintiff was directed was not appointed by the District Court Magistrate in-charge upon a written request by the Primary Court. A closer look at the said warrant of attachment in execution of judgment (MCA/65) reveals some interesting features and I propose to cite just a few of them. Although the warrant purports to have been issued to command the court broker to demand payment of the amount stated from the Plaintiff, that same amount is indicated to have been paid. It is equally clear from the said warrant that it was made by Temeke Primary Court Magistrate but stamped with rubber stamps of Mbagala Primary Court. The two features speak louder about the genuineness of the said warrant. At any rate, as stated by DW1, Kam Commercial Services could not have been appointed because no such court broker was licenced by the Registrar of the High Court as evidenced by exh. D l. Five, the warrant of sale (exh. P3) does not reveal the name of the Magistrate who signed it. On the other hand, by DW2's own evidence she made an application for execution before the District Court at Temeke and had execution form filled and upon payment of the requisite fees she was advised to go to 10 Mbagala Primary Court. The second Defendant is on record telling the Court that she was advised by a Magistrate whose name was not disclosed to wait for a call to receive her entitlement from the decree. DW2 told the court further that after some time she got a call from a Magistrate whose name was again not disclosed who gave her Tshs. 16,417,722/= cash in the office and that the amount was lawfully due to her composed of principal sum and interest. In my judgment, it will be clear from the foregoing that the evidence proving that the 1st Defendant dealt with the execution of the decree in the manner contended by the Plaintiff is but too weak to support her case. I would for that reason endorse the submissions by the learned State Attorney that the Plaintiff has failed to discharge her burden of proof required of her that the 1st Defendant made any wrongful or fraudulent order resulting into evection of the Plaintiff from her house in execution of a decree in case No. 112 of 2005. Simply stated, the evidence led by the Plaintiff is too insufficient to discharge a burden of proof on the tort of misfeasance in public office. It may be instructive at this stage to reiterate the principle which I have had an opportunity to apply in previous cases regarding the plaintiff's burden of proof. The principle is to be found from the works of Sarkar's Law of Evidence, 18th edition, M.C. Sarkar, S.C. Sarkar and P. C. Sarkar, published by Lexis Nexis expounding useful commentaries derived from numerous courts' decisions in India interpreting section 104 of the Indian Evidence Act which is impari materia with our section 113 of the Evidence Act, Cap 6 [R.E. 2002] applied in Kibaigwa Agriculture and Marketing Co-operative Society Ltd v. Stanbic Bank Tanzania Limited, Civil case No. 211 OF 2011, Atashasta Nditiye and others V Lingo Milele Haule& 3 others, Land Case No. 63 of 2010, and Zaidi Baraka v. Ngoro R Bole, Land Case No. 70 of 2012(all unreported).The principle stresses that the Plaintiff's discharge of his burden of proof is not li dependent on the weakness(if any) of the defence case. The Plaintiff must first discharge his burden of proof before calling upon the defendant to prove his case. The Plaintiff has not surmounted that hurdle. Indeed as rightly submitted by Ms. Proscovia learned Advocate for the 2nd Defendant the Plaintiff's evidence alleging fraudulent acts falls short of the standard required in similar cases where a crime is imputed on the authority of Hidaya Ilanga v . Manyama Manyoka and Omari Yusufu v. Rahma Ahmed Addulkadr (supra). In consequence, there being no proof of existence of misfeasance in public office, I hesitate to answer the first issue in the affirmative as urged by the Plaintiff. That issue is answered against the Plaintiff. Next I turn my attention to the second issue which calls for a determination whether the Plaintiff has any cause of action against the 2nd Defendant. Admittedly, the second issue was framed premised on an affirmative answer to issue No. 1 above. The learned State Attorney has invited the court to answer the issue in the affirmative because it is the 2nd Defendant who applied for execution before the District Court and eventually got payment of Tshs. 16,417,722/= from the sale of the Plaintiff's house through forged documents (exh. P2, P3 and P4). Whilst admitting that the Plaintiff did not adduce sufficient evidence to link the 2nd Defendant with forgery of execution documents, the learned State Attorney submitted that the fact that the 2nd Defendant admits to have benefited from the sale proceeds of the Plaintiff's house through an unlicensed Court Broker which resulted into eviction of the Plaintiff from her house, the 2nd Defendant must be held liable to the Plaintiff. The learned Advocate for the 2nd Defendant for her part submitted that the execution was properly done through the Primary Court free from any wrongful and/or fraudulent order but even it was so, the Plaintiff has failed to prove how the 2nd Defendant aided and abetted the 1st Defendant to make the impugned 12 order leading to eviction from her house. Addressing the Court on the issue, the Plaintiff argued that there was sufficient evidence that from exhibits P2 and P3 that the documents came into existence as a result of collusive acts of the 1st and 2nd Defendants and so the latter cannot escape liability. It was her further submission that: "...2 nd D efendant procured the sa id w rongful a ct o f the 1st D efendant The 2nd Defendant know ingly and fo r own ends induced the 1st Defendants to com m it an actionable wrong vis, m isfeasance in Pu b lic O ffice by causing exh. 2 and 3 to com e into existence..." [a t Page 6 o f the Plain tiff's written subm issions]. A discussion on the merits and demerits of this issue requires as of necessity an understanding of what constitutes a cause of action. Ms. Lupondo made reference to John Mwombeki Byombalirwa Vs. Agency Maritime Internationale [1983] TLR in which the Court of Appeal defined the expression cause of action to mean essentially the facts which it is necessary for the Plaintiff to prove before he can succeed in the suit. The Plaintiff's complaint against the 2nd Defendant in this suit is to be found in para 18 of the amended plaint reproduced earlier. According to the said paragraph, the Plaintiff's cause of action against the 2nd Defendant is constituted by aiding, encouraging or assisting the 1st Defendant to commit abuse of public office. That being the case, it appears to be logical that a successful claim against the 2nd Defendant is predicated upon the Plaintiff sustaining her claim against the 1st Defendant. The position is regrettably that the Court has already determined the first issue against the 1st Defendant. That means that the Plaintiff cannot maintain a cause of action for abetting where she has not established her case against the person alleged to have been assisted or encouraged to commit a public misfeasance. Put it differently, in the context of amended plaint, the Plaintiff's cause of action 13 against the 2nd Defendant cannot exist independent of the 1st Defendant and so her claim must fail. In the upshot, my inevitable answer to the 2nd issue will be that the Plaintiff has no cause of auction against the 2nd Defendant and I so hold. Having answered the first two issues against the Plaintiff, the third issue which is dedicated to damages must follow suit. This is so because as I said earlier, that issue was dependent on affirmative answer to the first two issues. After finding no liability against the Defendants, the question of damages does not arise and I accordingly hold that the Plaintiff has not suffered any damages as a result of any wrongful acts of the Defendants. Finally, in the light of the foregoing, the Plaintiff's suit stands dismissed. Each party shall bear own costs. Order accordingly. 14