Scan 07 May 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI CIVIL APPEAL NO. 10 OF 2023 (Originating from Civil Case No. 03 o f 2022 before the District Court o f Babati) HAMIDU ZUBERI.......................................... APPELLANT

VERSUS ASHA GWAAY............................................. 1st RESPONDENT YUSUPH HAMIS...........................................2nd RESPONDENT SAID HAMIS HUSSEIN............................... 3rd RESPONDENT

JUDGMENT 21st February & 6>h May, 2024 Kahyoza, J.: Asha Gwaay, Yusuph Hamis and Said Hamis Hussein sued Hamidu Zuberi before the district court claiming for payment of- 1) Tzs. 40,000,000/= as general damages for malicious prosecution; 2) interest on the decretal sum; 3) compensation or loss of profit form business and agricultural gain; 4) damages for mental and psychological torture; 5) costs and any other relief(s) the Court may deem fit to award. i Hamidu Zuberi defaulted to file the written statement of defence within 21 days. The trial court granted him a seven days leave to file the written statement of defence. Hamidu Zuberi filed the written statement of defence. Following the respondent's advocate's objection that Hamidu Zuberi filed his written statement of defence out of prescribed time, the trial court sustained the preliminary objection. It dismissed Hamidu Zuberi's written statement of defence for being filed out of time without leave. I wish to add that the trial Court ought to have struck out the written statement of defence filed out of time from the record and not dismissed it. The striking out of the written statement of defence (the WSD) would have to put Hamidu Zuberi to a position that he filed no defence. Hamidu Zuberi made an attempt to set aside the order to proceed ex-parte, unfortunately the record does depict what happened. The record reads that on

21.2.2023 when the matter came before the trial court for mention so as to determine the way forward, Mr. Masanja advised that the issue whether to determine an application seeking to set aside an order to proceed ex-parte be raised before the hearing. The court framed the issues to be proved during the ex-parte hearing and fixed hearing on 7.8.2023. On the date fixed for hearing, the issue of hearing an application seeking to set aside the order to proceed ex-parte was not raised. The trial court proceeded to hear the matter ex- parte. The trial court did not consider the application to set aside the order to proceed ex parte. I leave that at that and revert to the issues of the instant appeal. Having heard the suit ex-parte, the trial court found that the respondents proved the claim of malicious prosecution and awarded damages of Tzs. 5,000,000/=, interest on the decretal sum from the judgment date to the date of full payment and costs. Dissatisfied, Hamidu Zuberi appealed to this Court contending that the trial court's act of sticking out his defence and refusing to set aside the ex-parte order denied him the right to be heard and that the respondent failed to establish that he initiated criminal proceedings with malice. Hamidu, the appellant appeared unrepresented and submitted that the respondents never won a criminal case against him. He added that he was unable to file

the WSD on time as his advocate could not secure a control number on time to pay filing fees. Mr. Masanja, the respondents' advocate replied that the appellant had failed to prosecute the appeal. He added that the appellant was required to follow the procedure of setting aside the ex-parte decree before lodging an 3 appeal. The law is settled that when there is an ex-parte decree, the party aggrieved has first to exhaust the available remedy. To support his contention, he cited the case of M/S Equity For Tanzania (EFTA) LTD v. Ramdhani Mohamed Mungwe, Civil Rev. 3/2022. He concluded that by lodging the current appeal Hamidu Zuberi is trying to impeach the court record. He cannot impeach the record. The court record speaks for itself. He prayed the appeal to be dismissed with costs. Hamidu Zuberi had nothing to re-join. Having heard the submissions, I decided to commence with the issue whether it is procedurally correct to appeal against an ex parte decree without first applying to set aside the ex parte decree. Depending on the outcome of the first issue, I will determine the issue whether the respondents proved the claim of malicious damage against the appellant. Is an ex p arte decree appealable? The respondents' advocate Mr. Masanja took a position that it unprocurable for a party aggrieved by an ex parte decree to appeal. He cited the decision of this Court in M/S Equity

For Tanzania (EFTA) LTD v. Ramdhani Mohamed Mungwe, Civil Rev. 3/2022. I beg to differ with my learned friend's submission. I am of the view that a party aggrieved by an ex parte decree has two options take; one, he may apply to the court which 4 passed the decree to set aside the ex parte decree. If, the court dismisses his application he may appeal against the dismissal order. See the provisions of Order VIII rule 14(2) or rule 15 of the Civil Procedure Code [Cap. 33 R.E. 2019] (the CPC). Two, a party aggrieved by an ex parte decree, may appeal, if he is of opinion that the ex parte decree was reached erroneous or without evidence. See section 70 of the CPC. It states that- 70. Appeal from original decree (1)Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force; an appeal shall lie to the High Court from every decree passed by a court of a resident magistrate or a district court exercising original jurisdiction. (2) An appeal may lie from an original decree passed ex parte. (3)No appeal shall lie from a decree passed by the court with the consent o f the parties. (Emphasis added). The sub-section (2) of section 70 of the CPC is clear, an appeal lies against an ex- parte decree. There is no condition imposed before a person can appeal against the ex parte decree. A party who appeals against the ex parte decree seeks to

challenge the decree because either the decree holder did not prove his case on the balance of probabilities, despite proceeding ex 5 parte or the reliefs awarded were excessive or not justified by law. An appeal against an ex parte decree stems from an established principle of evidence, that a plaintiff has a duty to prove his claim to the required standard in an ex-parte hearing. See Standard Chartered Bank Tanzania Ltd v. Samwel Nyalla Nghuni (Civil Appeal No. 45 of 2020) [2023] TZCA 73 (28 February 2023) where the Court of Appeal observed that- We also wish to add, for the benefit o f the legal fraternity that, regardless o f whether or not the matter proceeded ex parte, a plaintiff in a civil case is not relieved or absolved o f the duty to prove the case against the defendant on the required standard. (See Kalyango Construction and Building Contractors. Limited Vs. China Chongqing International Construction Corporation (CICO), Civil Appeal No. 29 o f 2012 and Mustafa Ibrahim Kassam T/A Rustam and Brothers Vs. Maro Mwita Maro/ Civil Appeal No. 76 of 2019 (both unreported). In other words, where a suit proceeds ex-parte against the defendant, the trial Judge or Magistrate does not assume the role o f an umpire as to act as a conduit pipe for the plaintiffs averments to flow freely throughout and formally endorse them in the judgment. We are saying so because, it appears to

us that, in the present case, the learned trial Judge endorsed the respondent's claim without. To the position that person aggrieved by an ex parte decree has a right to appeal, I have found rescue in the decision of the Court of Appeal in 6 Dangote Industries Limited Tanzania vs Warnercom T. Limited (Civil Appeal 13 of 2021) [2022] TZCA 34 (17 February 2022). The Court of Appeal observed that- "The procedure for setting aside an ex parte judgment in both the High Court and subordinate courts is set out under Order 9 rule 13 (1) o f the CPC according to which an ex-parte judgment may be set aside if the judgment debtor assigns good cause that prevented him to enter appearance on the date when the court allowed the decree holder to proceed ex-parte. Further, under order XL rule 1 (d) o f the C P C a n order refusing to set aside an ex parte judgment is appealable. Conversely, an ex-parte judgment is appealable under section 70 (2) of the CPC which provides that "an appeal may tie from an original decree passed ex-parte” Section 70 (2) o f the CPCunam biguous as it is, does not impose any condition for appealing against an ex-parte judgment In our considered opinion therefore; as the provision of section 70 (2) o f the CPC clearly and unambiguously provides for an automatic right of appeal against an ex-parte judgment, it is not for the court to narrow down its scope by

implying that the legislature intended that such an appeal would be conditional upon there being an attempt to set the ex parte judgment aside- We can thus, hold without any hesitation that, the right to appeal against an ex parte decree is i automatic and does not depend upon there being a prior proceeding to set aside the ex parte judgment It was submitted for the respondent that; the requirement that an appeal against an ex parte judgment must be preceded by an application to set the same aside has been laid down in the case of Jaffari Sanya & Another v. Saleh Sadiq Osman (supra) which was followed in Pangea Minerals Ltd v. Petrofuel (T) Limited and 2 Others. We have very carefully read the authorities and with respect, we do not think that, they are in support o f that proposition. We shall explain. (Emphasis added) I find, without hesitation that, the appellant is right to appeal against the ex parte decree. I will proceed to consider the appeal on merit. Was the claim for malicious prosecution proved? This is a first appeal, thus, one of its duty among others, is to re­ evaluate the evidence. There is no doubt that the suit, Asha Gwaay, Yusuph Hamis and Said Hamis Hussein instituted is based on a tort of malicious prosecution. Asha Gwaay, Yusuph Hamis and Said Hamis Hussein claimed that Hamidu Zuberi maliciously prosecuted them. It is settled that a party suing for

malicious prosecution must prove, as the Court of Appeal held in Yonah Ngassa v. Makoye Ngasa [2006] T.L.R. 123, the following- 8 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 plaintiffs favour. It is further settled that to succeed in claim for malicious prosecution, the plaintiff must prove all four ingredients as stated in Mbowa v. East Mengo Administration [1972] EA 353 the defunct East Africa Court of Appeal stated that- "The plaintiff in order to succeed\ all the four essentials or requirement o f malicious prosecution; as set out above, have to be fulfilled and that he has suffered damage. In other words, the four requirements m ust"unite" in order to create or establish a cause o f action. I f the plaintiff does not prove them he would fail in his action." This court's task is to find out whether Asha Gwaay, Yusuph Hamis and Said Hamis Hussein proved all four elements of a tort of malicious prosecution, by balance of preponderance. I will commence with the issue whether Asha Gwaay, Yusuph Hamis and Said Hamis Hussein (the respondents) proved that Hamidu Zuberi actuated criminal proceedings 9 out of malice. The undisputed evidence on record is that Hamidu Zuberi instituted criminal proceedings

against the respondents alleging that the respondents had committed the offence of theft. They stole his crops. The evidence showed that Hamidu Zuberi found the respondents harvesting his crops. Asha Gwaay, did not object to have harvested the crops but she contended that she owned the crops. Hamidu Zuberi deposed during trial of the criminal case that, before the respondents harvested his crops, they had reached an amicable settlement to the effect that, the respondents will not enter onto the farm and cultivate it. I am of the view that such evidence on record did not establish that Hamidu Zuberi instituted criminal proceedings with malice. For that reason, I do not find it proved that Hamidu Zuberi was actuated by malice. The Court of Appeal in James Funke Ngwagilo v. Attorney General, /2004] TLR 161, defined malice Xhus- "Malice in the context o f malicious prosecution is an intent to use the legal process for some other than its legally appointed and appropriate purpose. The appellant could prove malice by showing for instance, that the prosecution did not honestly believe in the case which they were making, that there was no evidence at all upon which a reasonable tribunal could convict, that the prosecution was mounted for a wrong motive and show that motive. "[Emphasis is added] 10 There is evidence that the matter had been amicably settled and the appellant had a

letter from the ward tribunal to prove that he owned the suit land and crops. This evidence is in the primary court judgment in respect of the criminal case, Hamidu Zuberi instituted against Asha Gwaay, Yusuph Hamis and Said Hamis Hussein. Thus, one cannot argue convincingly that, Hamidu Zuberi instituted criminal proceedings with malice. Malice in the claim for malicious prosecution must be proved. The respondents were duty bound to bring evidence to prove that Hamidu Zuberi prosecuted them maliciously. See the holding in Bhoke Chacha v Daniel Misenya [1983] T. L.R. 329 where the Court held that- "It is for the appellant to prove that the respondent's report was malicious... This can be done by adducing evidence which will lead to the Court to make finding whether the respondent acted maliciously." I am alive of the position of the law that malice may be inferred as stated in Jeremy Clifford v The Chief Constable of the Hertfordshire Constabulary [2011] EWHC 815 (QB). In that case, the suit involved a claimant who believed he had been maliciously prosecuted for possession of indecent images. Justice Mackay remarked that- ii "... malice "can be inferred from the absence of reasonable and probable cause if the evidence warrants it". (Emphasis added) The respondents neither prove that, the appellant instituted the claim with malice nor is there evidence on record for this Court

to infer malice. Did Zuberi initiate criminal proceedings without probable and reasonable cause? To prove malicious prosecution, Asha Gwaay, Yusuph Hamis and Said Hamis Hussein, had also a duty to prove that Hamidu Zuberi initiated the case against them without probable and reasonable cause. This Court in Amina Mpimbi v. Ramadhani Kiwe [1990] T.L.R. (Ruhumbika, J.) held that- "For the appellant to have succeeded in her action against the respondent; she should have proved in the court below that there was malice on the part o f the respondent in that he had prosecuted her in the primary court without just cause or excuse or that the respondent had no reasonable cause when he prosecuted her over there. Therefore; the defendant has to prove that defendant did not have such a belief. The Court of Appeal defined the term of art reasonable and probable cause in Seif Mohamed Maungu v Wendum Lameck Sawe t/a W.L. 12 Sawe Garage Civil Appeal No. 102/2013 (CAT unreported) by quoting the definition in Hicks v. Faulkner (1878) 8 QBD 161 at 171 as follows- "Reasonable and probable cause is an honest belief in the guilt of the accused based on a full conviction founded upon reasonable groundsf o f the existence o f a circumstances, which assuming them to be true, would reasonably lead any ordinary prudent man and cautious man placed in the position o f the accuser to the conclusion that the

person charged was probably guilty o f the crime imputed." In another case of James Funke Ngwagilo (supra), Court of Appeal in held that it was enough if a person who initiated criminal proceedings to believe that that there is reasonable and probable cause for the prosecution. It held- 7 f is enough if the defendant believes that there is reasonable and probable cause for the prosecution" for one to prove that there was justification for the prosecution. Certainly, the burden lay with the appellant to prove the absence o f reasonable and probable cause in the prosecution. We note from the record o f appeal that throughout his testimony spanning from page 105 to page 110, the appellant did not address this element. The only evidence on which to base the claim for malicious prosecution was produced rather cursory at pages 107 and 108 o f the record o f appeal thus:" 13 From the above authorities, Asha Gwaay, Yusuph Hamis and Said Hamis Hussein had a duty to prove that Hamidu Zuberi did not honestly believe or believe at all that there was a reasonable and probable cause to prosecute them. The fact that prior to the commencement of criminal proceedings, the dispute between the parties had been settled in the appellant's favour that, the respondents had no right to cultivate the disputed land, entitled him to belief that the respondents illegally harvested his crops. They stole

his crops. I am of the firm view that, the evidence, as shown above, proves boisterously the presence of reasonable and p ro b ab le cause. The appellant had reason to believe that the respondents had no right to harvest the crops. Were the criminal proceedings terminated in the respondents' favour? To succeed in a claim for malicious prosecution, Asha Gwaay, Yusuph Hamis and Said Hamis Hussein had another task to prove on the balance of probability that, the criminal proceedings were terminated in their favour. I had a cursory review of the judgment of the primary court in criminal case number 87/2021 Hamidu Zuberi v Asha Gwaay, Yusuph 14 Hamis and Said Hamis Hussein. The primary court's record speaks louder that the proceedings were not determined in the respondents' favour. The primary court found no evidence to prove that respondents were guilty or not guilty as there was land dispute which was not settled. It established that, the land ownership dispute was not settled as Hamidu Zuberi had a letter from the ward tribunal to prove that he had title to the land and Asha Gwaay, Yusuph Hamis and Said Hamis Hussein a letter from the ward tribunal indicating that she was the owner of the land. I wish to reproduce the relevant part- " Kupitia ushahidi uliotolewa mbe/e yangu na pande zote mbi/i Mahakama hii tukufu inapata ukakasi wa kutoa hukumu kwa kuwaweka washtakiwa hatiani kwa

sababu zifuatazo; mshtakiwa namba moja ametoa kiba/i kinachoonyesha kuwa wa/iruhusiwa kuvuna, sasa Mahakama inapata utata kuwaweka hatiani washtakiwa wakati wanakibaii kilichowaruhusu kuvuna, kibaii waiichopewa na ofisiya Baraza la Kata na Ardhi, iakini pia Mahakama inapata kigugumizi kwa kibaii hichi kwani hata mialamikaji nae aiipewa kibaii kuwa famiiia yake ndio wamiiiki wa eneo hiio na kibaii kiiichotoiewa mara ya piii hakikuonyesha kama kimetengua maamuzi ya kwanza. Hivyo Mahakama hii tukufu inaona viba/i vyote ni batili kwa havijafata utaratibu wa kisheria na kuamuru kesi ikafungu/iwe Baraza la Ardhi la Wilaya Hi kuweza kupata mmiliki wa eneo hili, 15 kwani Baraza la Ardhi la Kata linachochea mgogoro kwani wamevitoa vibali kwa pande zote mbili, na Hi kuepusha uvunjifu wa amani yoyote yule asifanye chochote kwenye eneo hilo mpaka BARAZA LA ARDHI LA WILAYA BABATI. Kwa maana hiyo Mahakama inaona si kosa la washtakiwa kwa sababu walipewa kibali cha kuvuna” ( Emphasis added) Based on the judgment in the criminal case before the primary court, it crystal clear that the criminal proceedings were not determined in the respondents' favour. Parties were advised to seek remedy to the district land and housing tribunal. Thus, Asha Gwaay, Yusuph Hamis and Said Hamis Hussein did not prove another element of the tort of malicious prosecution. In the end, I find that Asha Gwaay, Yusuph

Hamis and Said Hamis Hussein failed to prove three elements of the tort of malicious prosecution, which are that; one, Hamidu Zuberi acted without reasonable and probable cause; two, he was actuated by malice in prosecuting them; and three, the criminal proceedings ended in their favour. I allow the appeal and hold that the trial court was not justified to decide in favour of Asha Gwaay, Yusuph Hamis and Said Hamis Hussein. Asha Gwaay, Yusuph Hamis and Said Hamis Hussein did not prove the claim of malicious prosecution against Hamidu Zuberi. I set aside 16 the judgment and decree of the trial court and proceed to dismiss the claim instituted by the respondents for want of evidence. To avoid endless litigations among the parties who are relatives, I make no orders to costs. It is accordingly ordered.

JUDGE Court: Judgment delivered in the presence of the parties. B/C Ms. Fatna (RMA) present. 3.R. Kahyoza

JUDGE 6/05/2025 17