Jackson Penford Chimile

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY) AT IJC MOROGORO. CIVIL APPEAL NO.25802 OF 2024 (Arising from the decision of the District Court of Kilosa in Civil Case No. 05 of 2023). JACKSON PENFORD CHIMILE……………………………. APPELLANT VERSUS NIKODEMO JACKSON………………………………………. RESPONDENT JUDGEMENT 27th of June ,2024. MANSOOR, J. In the District Court of Kilosa, the appellant herein sued the respondent vide Civil Case No.05 of 2023 demanding payment of Tshs. 16,000,000/= as recompenses for malicious prosecution. At the conclusion of trial, the court entered the decision in favor of the respondent and ordered the dismissal of the suit. Dissatisfied, the appellant decided to challenge the decision before this court armed with four grounds of appeal couched in layman language as reproduced hereunder; 1. That, the honourable trial magistrate failed to evaluate evidence adduced and hence arriving at an erroneous decision. 2. That, the honourable trial magistrate erred in law and in fact by not ordering the Respondent to pay the Appellant the sum of 16,00,000/= which claim was proved on balance of probabilities. 3. That, on account of Exhibit P1 the honourable Magistrate clearly erred in failing by hold that as the Appellant he never proved his case while the appellate court herd that the primary court entertain case which had no jurisdiction over it and the case was not the part of this case. 4. That the honourable trial magistrate erred in law and in fact basing her decision on the contradictory and weak evidence given by the respondent and his witness during trial. The facts giving rise to the suit are that, on 09th day of December, 2021 the appellant was caught red handed stealing maize at the respondent’s farm. The respondent reported the matter to the street leaders who failed to settle the matter as the appellant disappeared after he was allowed to go and think to settle the matter amicably. As expected of the law enforcers, the appellant was arrested and arraigned in the Magole Primary Court via Criminal Case No.377 of 2021 charged with the offence of stealing contrary to section 265 of the Penal Code [Cap 16, R. E 2019]. After a full trial the court was satisfied that the offence was proved against the appellant beyond reasonable doubt and subsequently he was convicted and sentenced to serve six months’ imprisonment. The appellant’s relatives were not happy with the decision of Magole Primary Court and thus they complained before Kilosa District Court. Responding to the said complaints, the District Court suo motto called for and examined the proceedings of Magole Primary Court via Criminal Revision No. 02 of 2022 and on turn it acquitted the appellant on reason that the case against him was not proved beyond reasonable doubt. Having a belief that the charges against him were framed and concocted, the appellant instituted a suit in the District Court of Kilosa on malicious prosecution against the respondent. At the conclusion of trial, the court entered the decision in favor of the respondent. Disgruntled the appellant has preferred the instant appeal. With the leave of the Court, the hearing of the appeal was canvassed by way of written submission by the order of this Court dated 18th day of June, 2024. Both parties appeared personally unrepresented. The appellant was the first to front his arguments. He separately argued the second ground of Appeal while silently consolidating the first, third and fourth grounds which revolved around the appellant’s complaints regarding the evaluation of evidence done by the District Court. On the first ground of Appeal, the appellant commenced his submissions on the ground by citing the case of North Mara Gold Mine Limited Vs Joseph Weroma Dominic, Civil Appeal No. 299 of 2020 quoted with approval in the case of Yonah Ngassa Vs Makoye Ngasa [2006] T.L.R 123 in which the court underlined the ingredients of the tort of malicious prosecution. Relying on the foregoing, the appellant lamented that the trial court failed to evaluate the evidence on record to include the tort of malicious prosecution. He highlighted that, the respondent had no probable cause of action against him as he failed to prove the claim beyond reasonable doubt. Submitting in support of the second ground of Appeal, it was the appellant’s contention that the trial court erred in favoring the respondent against the appellant’s claim for damages resulting from the respondent’s malicious prosecution of the appellant. To fortify his contention the appellant referred the court to the case of Finca Microfinace Bank Vs Mohammed Omary Magayu Civil Appeal No 23 of 2022 where it was held that; ‘general damages do not need to be specifically claimed or proved to have been sustained for are in compensatory incharacter intendedto take care of the loss of reputation as well as to act as solarium for mental pain.’ He submitted further that, there was no dispute that there were proceedings instituted and continued by the respondent at the trial Primary court and that the same were terminated in the favour of the appellant by the District Court. He went on submitting that, the respondent had no proper cause against the appellant. In that regard, he implored this court to ascertain and rule out that the accusations against him were mere assertions and that is why he was acquitted. To sum up his submissions, the appellant cited the cases of Martin Vs Watson [1996] 3 ALLER and that of Mbowa Vs East Mengo Adminstration [1972] EA 533 and urged the court to subscribe to his submission and consequently quash and set aside the decision of the District Court with an order as to costs. In his reply, the respondent first and foremost attacked the appellant for what he considered to be his failure to submit on the third and fourth grounds of appeal. He submitted that, even the submissions on the first and the second ground lacks merits as none of the ingredients of malicious prosecution was proved by the appellant in the trial court. To add weight to his submissions, the respondent narrated what he testified at the primary court in relation to the appellant’s commission of the crime he was charged with and contended that, the District Court considered the primary court’s records which evidences that the appellant was convicted and sentenced after the court had received satisfactory evidence from the respondent. On the strength of the submissions above, the respondent insisted that he had a clear cause of action against the appellant and thus the conviction and sentence against him was just and proper as the case against him was proved. In wounding up, the respondent prayed that this court be pleased to dismiss the appeal with costs and uphold the judgment and orders of the trial court. He also urged the court to grant other reliefs as prayed in the respondent’s reply to the appellant’s petition of Appeal. I have with great respect, considered the submission of both parties in this appeal. The issue which calls for my consideration and determination is whether the instant appeal is meritious. I will start my deliberation with the appellant’s complaint on the first, third and fourth grounds of Appeal that there was improper evaluation of evidence on record by the trial court. The appellant expressed his belief that the tort for malicious prosecution against the respondent was proved on balance of probabilities. On turn the respondent disputed the appellant’s argument arguing that the trial court handled the evidence on record perfectly. It is settled that when suing for malicious prosecution a party must prove the four ingredients: one, that the proceedings were instituted or continued by the defendant; two, that the defendant acted without reasonable and probable cause; three, that the defendant acted maliciously; and finally, that the proceedings were terminated in the plaintiff’s favour. [ See the case of Yonah Ngassa v. Makoye Ngassa, [2006] TLR 213] In the appeal at hand, there is no doubt that the appellant was prosecuted at the trial primary court in the criminal proceedings which ended in the respondent’s favour. However he was acquitted after the pronouncement by Kilosa District Court via Criminal Revision No. 02 of 2022. The question to be tackled in relation to the circumstances to the instant appeal is whether the appellant successfully proved the second ingredient for malicious prosecution as prefaced earlier on above. It is correctly observed that the institution of criminal proceedings against the appellant was a result of the allegation of stealing maize from the respondent’s farm. The appellant was of the view that, the respondent acted without reasonable and probable cause because he failed to prove the charge against him beyond reasonable doubt resulting into his acquittal. This court has once stated in the case of Alex Joshua Nairo v. Exim Bank Tanzania Limited, Civil Case No. 550 of 2022 HC at Dar es Salaam that; An acquittal Is not tantamount to want of reasonable ad probable cause and the plaintiff was needed to prove it.…it is an indication that… There was no, in the opinion of the Criminal Court, enough evidence to prove the participation of the plaintiff in the commission of the offence. Or probably the evidence of the prosecution was not relied upon for some reason by the Criminal Court. Or maybe there was some other technical defects, which has resulted in his acquittal or discharge. Basing on the above authority is not sufficient for the person to prove that he was innocent of the crime for which he was prosecuted by proving that the prosecution was terminated in his favor. He must also show that the defendant acted maliciously and without reasonable and probable cause. Per Hawkins, J. in Hicks v. Faulkner, (1881) 8 QBD 167 (172) defined the term Reasonable and probable cause to mean; ‘an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable ground, of the existence of a state of circumstances, which, assuming them to, be true, would reasonably lead an ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.’ The House of Lords approved this definition in Herniman v. Smith, (1938) AC 305 where it was stated that; ‘There must be first an honest belief of the accuser in the guilt of the accused; secondly, such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conviction; thirdly, such secondly mentioned belief must be based upon reasonable ground, that Is to say, such grounds as would lead any fairly cautious man and the defendant's situation so to believe; fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for belief in the guilt of the accused’. At the District court the appellant adduced evidence as reflected at page 4 of the typed proceedings to the effect that: - "I had a case at Magole primary Court number 377/2021, I become convicted their at and sentenced for six months imprisonment, after entered into prison I asked the district Court to revise the decision, after revision, I become acquitted because of that I decided to file the case before the court on malicious prosecution and costs of the suit. That’s all. However, the appellant made no attempt to explain to the trial court whether the prosecution was without any probable justification. He ought to have adduced evidence showing the absence of probable cause rather than claiming innocence on acquittal. On the adversary side, the respondent tale at page 5 of the trial court typed proceedings reveals how and why he mounted the prosecution against his opponent: ‘I recall one day I arrested that man while stealing maize at my farm around 19:00 hours night, I chased him and managed to arrest him up to the village office the VEO advice us to settle but on the next morning he never come, therefore he was taken sent to police officers sent him at court. He had a case to answer they convicted him to serve six months imprisonment. After 32 days I saw him at street…’ With reference to the respondent’s narration, one cannot hesitate to hold that he acted in accordance with the law as whenever there is theft, there is a duty of every citizen to report the theft to police for investigation and eventually prosecution of the perpetrators. This proves that there was reasonable and probable cause for putting the criminal machinery in process. This also shows that the prosecution was without malice. In view of the above explanations, I find no justification to disagree with the conclusion reached by the District court that malicious prosecution case cannot stand under the circumstances. I shall however, not labor on the second ground of appeal for obvious reason that, by so doing, that will be an academic exercise. For reasons I have given, I hereby dismiss the appeal with cost. I consequently confirm and uphold the decision of the District Court of Kilosa in Civil Case No.05 of 2023. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 27th DAY OF JUNE 2024. L.MANSOOR JUDGE 27/06/2024