19980902 TZHC Dar es Salaam2

IN 'I'HE HIGH COURT OF TANZANIA ,. DAR ES ,3ALAJ.i.M DISTRICT' REGISTRY AT DAR ES SPLA.(,)Vl CIVIL CASE NO .166 OF 1997 ,• rso1·' ,.J•1T'."4 J.V..1.. H.1-\.K T,f'DO""' .LJ e • e • e e e a • Cl • • O O O • 0 • .• 9 PLAINTIFF

VERSUS Ivi. D. MOTORS LIMl 'T~D ••••• ~ • • • • DEFENDANT J U D G g ME N r BUBESH~, J: \ The Plaint:.ff one HAROCN J\'lDOE filed a claim aga.i::11~t l l, the d~-iendant for ci r:1ages ar:..sing out of the tor·t of .:false inrprisor1went. He has 2.lso asked for ,special damages ,. on account of loss of use, interests and co :,ts. 'l'he. I de£sndaiit ha~ totally denied liability, At the start of the hearing the followj_ng issues were framed £'or the courts detern,ir.iation: l. - whether there was a false impriso nrnen: to the plaintiff. Ard if yes to (1) sbove. 2. ,;.. whether the defendant was responsible for the tort of :false irnpriso:1IDent. 3. - what reliefs are parties (C?ntitled to. \ The Plaintiff who ',vas the sole witness testj_fied as follows. He is a businessman dealing with central coo~::;__ing systems are well as being a building contractor. He told the court that on ll/5/94 he went to the def er. dants company premises and bought a motor vehicle Toyota hark II. A d1)plicate Registration Card was ternered in court and admitted as Exhibit P 1. Tl1at the vehicle he purchased was TZF 5907 Toyota J\'lark II. It was manu.factured in 1987 with Chassis number CX 7000 l8782, r._ l';- Engine number 15 0851298 ~ CC-~ 1-800, whiie _ in colour. ... 2 0 He stated in court that after using the vehicle fo.r ~'~1-½ years, he discovered that the chassis and engine rumbers engraved

on the vehicle were different from those appearing on the Registration Card~ He decided to go bacl: to the defendant's company~ He met one Bashir Fitahussein and explained to him his worries: The l.::i.t-er told the plaintiff that that was normal and ass1..:red the plaintif·f that he would look for the other ·rehicle. That, Bashir admitted that there could be c possibility for such a discrepancy. They met agin on -...6/7 /96 where Bashir assured him that there was nothiJ:1. g vrong. That, Bashir told him that the numbers on the re.< istration card a1"ld those of the vehicle v-ierr:: same. told hi111 that as the car was fairly new, rr:crbe it was not the same vehicle that had been sold to 1imo The plaintjff told court that he warned Bashir -~hat he was going t.o report the. matter to the police. .,.ccording to th2 Plaintiff, B2.shir pleaded with him not -:o go and tell the Police and that he would sort th,2 n;::_1_t·:c/ the following day. /,._n--;_ that the defendant would bring :long the person who brought that vehicle for sale, and tl'L,.t the defendant -agreed to do so. Exhibit F 2 a note writi2n by the defendant director Bashir was o.dmitted in court. Tr-.i.c plai ...--i.tiff further old the court t~ ,=.i.t the f 0llowing day h2 wci'1t . at 5 pm, to the defendant I s pr 2Li,ses but did not meet the person by the na_H1e of Lyimo. :Ie st:J.ted tho.t some people came forward

and introduced thcnselves :=i.s policemen. They ordered him to raise his bs.nds and they searchc?d him. He told the court that the a?.'rest and search were co ndu.cted in presence of his uncle :.Crn2Jnu Shekeh and his in.far-it son Idd. That he was taken tc Cc,ntral Folice Station and after escortir~g his son home, while und2r guard,' he -v-ms detained at the Police station for on2 day. He complained that he was suspected of 1.Jeing a robber 'Jarnbazi 1 who wanted to take a motor vehicle. He added that he was released on baiJ.. :from police custody the following day where the poliC1:? started their investigation. He stated that upon chec~"ing the vehicle . \ 2 He stated in court that after usi rg ·cc.e vehicle for 1.½ yearsf he· discover2d that the chassis a:ld engine numbers engraved on the vehicle were different from those appearing on the R.2gistration Card.. He decided to g(.J ba.cl~ to the defendant'~ company. He met one Bashir Fj_,::<ahussein and explc'i.ined to him his worries. The l:.i_t-er told the plaintiff -!,:;hat that was norrn,:i.l arJd assured the plaintiff tha.t he would look for the other ·rE:Jlicle. That, Bashir admitted that there could b9:: possibility for such a discrepancy. They met agin on =--6/7 /96 1-vhere Bashir assured. him that there was nothirn2 ·,rrong. That, Bashir told him that the rJUmbers on tl1.2 r2~ istration card and those of the vehicle

v1ere sarne. ':J" ·1:_?,t, Bashir furthe, told him that as the car was fairly new, rr.,: rbe it was not the ;3a.rne vehicle that had been scld to .1ih1., The pl.aintj__ff told court that he warned Bashir -J13.t he was going to report thc. matter to the police. _ ,c:cording to the plaintif'f, Bashir pleaded· with him not c:o go and tell the polica ar.:.d that he would sort the n.J_t·:c:r the following day. AlY'_ th3.t the defendant would bring :long the person who brought that vehicle for sale, and th,-t the defendant agrqed to clo so.. Exhibit F- 2 a note writ; 2n by the defendant direci;.or Bashir was admitted in court. The pla_L1tiff further itld th2 court t. c:i.t the following day h2 wc::nt at 5 pm, to the defendant I s pr :::Li,ses but did not meet the :Person by the nail!e of Lyimc.. .:.L::: st3.ted th.:::i.t some people came forward and introduced thens elves as policemen. They ordered hj_m to raise his hands and they searched him. He told the court that the a:.>rest and search were conducted in Presence of his uncle Irn~'.rnu Shekeh and his in.fant son Idd. That he was taken tc. Central Police Station and after escorting his son home, vl:ile under guard, he vras detained at the police station for on2 day. He complained that he was suspected of heir1g a robber .1 Jambazi 1 who wanted to take a motor vehicle. He added that he was released on bai1 from Police custody the

following day ·where the police started their investigation. He stated that upon chect.in;; the vehicle •· e O O I r- ' :) 3 document in his possession, he discovered that they were not ge r.iui ne. He told the court that he has not been charged with any of'f ence. That the police told him tr1c:,t the v,2hicles numbers and ,jetails had been mixed up with TZF 5957 which was sold to one Major K,basa (now retired) A Registration Card ·- photocopy for TZF 5987 was tendered in court as Exhibit P 3. He added that he was not responsible for the mix-up. That the defendant ordered· him to be arrested without lawful cause. That his vehicle w::1s unla.wfully detained :for six months. He prayed for damages as per Plaint. In cross examination, the plaintiff stated that Registration cards are issued by the Registrar of' vehicles and not the defendant. That was the ci_ ,3-,:: oi· the plaintiff's case. The defendant company called only one v,ri tness .;.. Bashir Fid.ahussein. He testified that he works at the M.D. ~oi~rs as a salesman. He knows the plaintiff who went to their premises to buy a vehicle. That was in 1994. The vehicle was Toyota J\·lark II which they sold for T'Shs .• 3. 7 m~ 7 lion. DW 1 testified that after a period of one year, the Plaintiff went to complain that the particulars o:f the I car are different. He told the plaintiff to be patient l while they investigated the

ni3.tter. That tl-:i.ey sun,11,oned Audax li.Usenene who had taken that vehicle for sale. DW 1 told the court that l'llr. Rusenene denied there being discrepancies b'.1t this Rusenene did not meet with the p1,:1intiff. That one day the Plaintiff visited their show room in company of two persons claiming to be Policern,~n. DW 1 told. the court that the p1aintiff demanded to be :paicl T$hs.100 ,ooo/ = so that he takes no action with the police. That as it was at ll w,1, he., asked the plaintiff go back 2t Li- pm. That the Plaintiff went back at the u.greed now but alone. As DW 1 had already complained at the central Police station of' some people demandiri_g money, the police went and laid an ambush. The Police arrested the plaintiff and another person. 3 ..,., doourn,2.nt in his possession, he discovered that they were not gen1ine. He told the court that he has not been charged with any offence. That the police told him th2,t the vehicles numbers and details had been mixed up with TZF 5957 which was sold to one Major K,basa (now retired) A Registration Card "· photocopy .for. TZF 5987 was tendered in court as Exhi.bit P 3. He added that he was not responsible for the mix-up. That the defendant ordered him to be arrested without law.ful cause. That his vehicle we.s unla.wfully detained for six months. He prayed for damages as per plaint. In cross examination, the plaintiff stated

that Registration cards are issued by the Registrar of vehicles and not the dei'endant. That was the cJ__ 3-2 of the plaintiff I s case. The defendant company called only one witness - Bashir Fid.o.hussein. He testified that he works at the M.D. ~ol,rs as a salesman. He knows the plaintiff who went to their premises to buy a vehicle. That was in 1994. Tb.2 vehicle was Toyota l'-'lark II which they sold for TShs. 3. 7 m:: -, lion •. DW 1 testified that after a period o:f one year, the Plaintiff went to cc:implain that the particulars of the car are cLifferent. He told the Plaintiff to be patient } while they investigated the niatter. That they suni.11.oned Audax fl.use~ne who had taken that vehicle for sale. DW 1 told the court that M.r. Rusenene denied there being discrepancies b'J.t this Rusenene did· not meet with the plaintif:f. That orn:~ day the Plaintiff visited their show room in company of two persons claiming to be policemi':!n. nw 1 told the court that the Plaintiff demanded to be. paid TShs.100,000/= so that he takes n.o action with the police. That as it was at 11 0,111, he asked the Plaintiff go back at 4 pm. That the Plaintiff went back at the agreed . now but alone. As DW 1 had already complained at th~ central Police station of some people d_emand.ing money, the Police went and laid an ambush. The Police arrested the plaintiff and another person. .... 4 DW 1

told the court that they went to the police station where they made staten,entso DW 1 tendered in court Exhibit D 1 - . the report he got from the polic:. ~ That later Rusenene can1e and told DW 1 to pay the tax on the vehicle., That out of the TShs.1.5 million being den:ianded Rusenene was only able to pay TShs.390,000/=. DW 1 told the court that they decided to complain to the police when the Plaintiff started den1anding n,oney from them. He denied that they were responsible for what befell the plaintiff. 'In cro,ss examination; DW 1 informed court that they own bonded warehouse, but are not pern,i tted to sale cars which are tax exempted. He denied meeting with Rusenene- in presence of the Plaintiff~ He admitted preparing Exhibit F 2. He denied knowing what charges were facing the plaintiff but adrni tted that the plaintiff was kept in police custody for one night and made subsequent police reports thereafter. The defendant further told the court that he thought taxes had been Paid u~~ Be admitted that their actions affected the Plaintiff but did not offer an alternative vehicle to the Plaintiff for use. That basically th0 1_cf r r.c~ cise; r,vs 1v1aira and Co, advocates appeared for the Plaintiff~ In their filed written submission, after reviewing ev 1.dence 1 submitted that there was false imprisonment of the Plaintiff by the defendant. Counsel referred the court to an

extract by Salmond and Heuston on the Law of' Torts 8th Ed. Fage 16 where the learned author states: "Whether or not a person has been arrested depends n~t on the legality of the arrest but on whether he has been deprived of his liberty to go where he Pleases". The case of Spicer v Holt (1977) A. C 987, at pqge 1000, was also cited in support of that proposition. Mr,. Maira submitted that on facts on record, i'Ssue number (1) be answered in the affirmative. . ... /5 5 On issue 2 whether the defendant was responsible for such unl;.:::.wful imprisonrHent, l"1r. JV1aira stated that, it is the defendant who reported the matter to ·the Police that the Plaintiff was intending-to to defraud the defendant• They conter:td therefore that it is the defendant who alerted the police leading to the plaintiff I s arrest. He submitted that the defendant be held liable. J.v1r. Iviaira submitted further that, contrary to what the defendant had promised to do, the latter did not ask._.Lyimo over the issue. That the issue of plaintj,_ff demanding a bribe of TShs.100,000/= was not corroborated upon by the Police in their report., They subrni t that by reporting to the police station, the defendant acted maliciously arld without probable cause~ On whether the Plaintiff has suffr=red any lvss, counsel Maira has subrni tted that false imprisonment is actionable per se~Street on Torts, 9th Fd. page

35. The plaintiff is therefor(J claiming darr-ag1c:s as follows: TShs.20 million for ·false imprisonn,ent aggravated damages lO million ~ the defendant be iiable to pay due tax to the Tanzania Revenue Authority general damages TShs~lO million for using a car with unpaid tax as the plaintiff could ri..ot issue or transfer the vehicle in absence of such taxes } damage,s in form of loss of use - TShs.16, 600,000/= at the rate of TShs.100,000/= Perday from when the car was ill.pounded. Tlw Plaintiff coPtend. that as a businessman, he was forced to hire alternative transport from 18/7/96 to 30/12/96 when the ca~ was returned to him. I • Mr. Kalunga for the defence submitted that the Plaintiff did not call the two people who were in his ·company when he was arrested. • e • • /5 • - 6 Mr. Kalunga added that following an investig3.tion into the rnatter, it was discovered th"lt thG'.re wns a 3 er:uineconfusion and requested the plaintiff to visit the defendant's show room. That the Plaintiff was arrested and kept at the Police station for a day assisting them in their enquiries. The defence cuntend that the Plaintiff had been visiting the defen:lant demanding rr:oney v;-hilst in the company of bogus police officer. That out of the TShs.100,000/= demar,ded, the Plaintiff managed to get only 20 ,ooo/ = while pror11ising to come Lt0r to collect the balc:ncc, of TShs .80 ,000/=. That the

PL.dnti.ff was arrested f'ollowir~ the defendant I s coffiPlaint. Th2,t the police produced a report E,'Cl.1.i bit D 1 and that IY.) taxes had bGell paid. That OI.ll:.: Audax Rusenene was respcnsible for the confusion in registrs.tion nunibers. Mr. Kalunga vic>:w is that what happened to the plaintiff has nothiri..g to do with the. defendant since it is ti-12 policerr.en who on their ovrn responsibi.li ty took th2 pl2intif.f into custody. He contends that tnis is no false imprisorm1ent on the part of thE=J defendant. He has cited the case of N~ering v Grab~rr - while Aviation Cc (1920) l22 L.'T.44,hr. Kalunga has submitted that tl1e clefc~ndant Is action was wholly justified in law as a good citizen of this cot.UJ.try. That in view of the prevni1ing circurnstances at the time, tne whole exercise led to the unearthing of n0n payment of custom duties. That, if the Plaintiff .felt aggrieved for being kept at the police station for on:: day, then h~ ought tc have sued the police. On damages suffered, IVlr. Kalunga has d0nied all damages claimec1 and that there is no evidence tendered to support · th e c 1 aim · ~ raise-.~-- H:::,,. prayed· .1_-"'or th.::. --- dismi-::::sal ~ of the.suit. I have now to address my n,ind on i.ssues nun-,bers one ar.d two together namely, whether the tort of false imprisor.Jll'10nt was committed on the plainti.f£. And if so, was the d2fcndant

responsible. On the facts on the record i t is nGt disputed by b:::ith parties that the Plaintiff was detained at the centr::11 police station on the night of 17 /7 /96. According to the Plaintiff's evidenc.,~, he was released on bail tbP .f.o1lowing day. The is}:;ue for detPrmini:1tion here is who perpetr.3.ted the act'? The plaintif'f' has blamed the defendant and in particular DW 1 l3ashir Fidahussein. The def\-?ridnnt as submitted by his la,,,ryer puts the blame on the police of:fice:rs, I agree vii th the submission made by Mr. Maira that L to const...ilutc th~ -t-01.'t of' f.al.$e ill;prionrn2nt, it is enough to show that the Plaintiff has been deprived of his p2:csonal li bc::rty., Mr. r11aira h~;:; cited two Engl.::_sh authorities - Spicer v Holt (19771, A.;-•. 987 and vhl ters v W. H. · ,Smith & Sons Ltd (1914) I K.B 595. On the 13.tter autllori ty the Plaintiff subnii t that where a p2rty has been arrested at the investigation of s01Le third party then both the third Party and the:: police? ar(:? responsible. Mr. Kalunea on the other hand has relied on the case of .Weei:i!:.~ v Grahem - White Aviation Co (1920 122 L .T .44 which absolves the reporter or informaticn given and heaps tht: blame fully on the policem3.n. \.'Jhilc~ this court finds the En,;li,3h authorities ) of considerable interest and persuasive, the sar1;e arE:~ not binding on this court. I tc1)ce much

guidance in the case of JViORRIS A. SASAWATA vs fviATIAS hALIEKO~ 1980 TLR 158 by Samatta, J (as he then was, It was held i~ the case that: nto constitute false imprisonnient there must be restraint of the Plainti££' s liberty the actual perpetrator of an :....ct which in law turns out to be a tort is personally li:1 le for damages -- ·. in a suit for £alse imprisornnE' r.t the · Plaintiff can recover damages for loss of reputation - . - - 11 ••.. /8 . 8 Bearing the above guidelines in mind I have no hesitation to conclude that the defendant Bashir was the actual propetrator in this case. He is the one who r·eported the Jncident to the Police. I differ with Hr. Kalunga that the Police be held solely liable for the tortious act. The defendant company is vicariously liable for the acts of' Bashir F'idahussein, DW l. Nr. Kalunga has subn1i tted that the police were acting; on a -vihole justified report made by the defendant to them. Was the restrair~ lawful? There was no evidence from the police on this and it is on evidence that the plaintiff has not been taken to court todate. On this issue His Lordship Samatta in the horis A. Sasawata ct:u;e st:1t.=-~ that:- 11 To succeed in a case of false imprisonrne nt, a Plaintiff does not have to satisfy the trial court that the rest1·..--,~~-t was unlawful. He does not shoulder that burden. It is for the defendant to prove that

the defendant need demor....strate is that he was restrained by the defendant - - - 11 As observed earlier the defendant has not established that the restraint was lawful. There was no evidence tendered to sup1-1ort the allegation that the Plaintiff had demanded for a bribe of TShs .. 100,000/= from the defendant.. As Exhibit D.:l tendered in court, .firstly it ought to have been tendered by the maker or the addressee.. These were not called, ri..ei ther was it copied to the defendant. The Plaintiff'' s counsel however did. not object to its production by DW 1. In any case Exhibit D 1 contain detaiJ.s on the mix u:p of registration ar.d non payment of taxes by owners.. There is no word about the bribery issue., I ani not satisfied that the def'endant' s version has a grain of truth. In this regard, comment has to b2 made on Exhibit I- 2. This is the document that was written by the defendant prornisi11g to locate or..e Lyimo, the original owner of the Plaintiff's car. -While the de.fendant witness Bashir admitted in cross examination •o•o•/9 9 havj_ng prepared it, he made no mention on Mr .• Lyimo during All in aJ_l t;h_j_s courf is ;::;o,ti...cfJpd tfr=rt .i s.sn,;,s. I and 2 have been proved o.nd the ref ore are answered in the affirmativeJ I now 1ncve to issue no 3, namely, and therefore e:h.ti tled to clarLages as a result. According to f•'ir. Maira for the Plaintiff,

he--.Jias submitted that the fort of false imprisonment is actionable per se - as per STREETS on Torts 9th Edition, page 35. Again as :per His Lordship .Samatta in the lVioris Sasawa te: cas.e that g i,a .false imprisolllllent does not merely effect a man's liberty, i t alse affects his rerJUtation -- - 11 Upon evi-::le:nce on record, I am satisfied that the defendant i,s liable for damages in coHDE''.Ction wli th the plaintiff arrest and detention. I have novr to address issue no 4 1 that of quantum of' dq.mages. The P1ai ntif.f has ilemised several claims. I will deal with e~ch separately~ On TShs.20,000;·000/= being damages for .:t'alse imprisonment. While I agree that the tort ◊'f false imprisonment is action'ible per se and that the defendants act af'f ected h.-:i-th the plaintiff' 1 s liberty ,and his rei-,utation, further that the damage did not cease until when the police c,ame out Vv'i th their report ·• clearing the plaintiff. I am of the new that the ·-••laim of TShs.20 million is definately on the higher side. It is a recJgnised :princirle that th~ governing purpose of damages is to Place the injred party _i,n same petition as far as money can do, as if hj,s rights have not been violated. That is not an easy task, ·!3.nd oourt have to do their best and corne out wtth a reasonable figure i.t1 a given circumstances, considerir1g that the courts duty i:n civil case is

not to punish the wron.g deer but to coIHpensate the victim. •-·•-.. lO Having said that, is the TShs.20 million claimed reasonable in the circur11ste_nces? I think not, i t is in my view on the high side. · I would award TShs. 6 ( six) million under this head. The Plaintiff has also claimed TShs.16,600,000/= at the rate of TShs.l00,000/= per day, as· special darrBges for loss of use. That he was forced to hire alternative transport from 18/7 /96 to 30/12/96 when th.e car was returned to him. There is however no evidence to support this specific damage. Specific damages have to be specifically plea1ed and proved.This court is however aware that the Plaintiff was deprived of his car for that period. He must have bought tl."12 ~;::ir so that he uses it in his businesses. Consid-ering the nature of the plaintiff's business he definetely has to n,ove around. While I decline to award hin, TShs .. 100,000/= per day, this court is of the view that coirrpensation o:f TShs.one million shillings for loss of use vrould be reasonable in the circumstances.of this case. On who should PaY taxes. Let parties present ~hemselves to Uie TRA Authorities who who one better Placed ta' know who he.s to shoulder the tax liability and in what propertion. on aggr3:vated damages item (b) and general damages for using car with unpaid tax i tern ( d) • The claims have not been well articuJ_ated to .say this court to grant the same. They are disallowed. l'h(" TJl:3.intiff -- is,· a#arded ... ~ ~ the usual intersts and costs. '· /// . .) l---< tS1.: :::~)_-:J /,_.,,, · Delivered before Aa G. BUBESHI Mr. i'-'12.ira for Flaintiff JLJDGE JV1r •. KaJunga for Def end2.nt. 2/9/98