20160722 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 143 OF 2012 JACOB ELI KANA MURO ............................... PLAINTIFF VERSUS CHARLES GODFREY MALLYA ....................... DEFENDANT EX-PARTE JUDGMENT MKASIMONGWA, J. JACOB ELIKANA MURO (Plaintiff) sued CHARLES GODFREY MALLYA (Defendant) claiming for among others a sum of Tshs. 200,000,000/= being the costs for damages caused by the defendant to the plaintiff which caused injury to his liberty, mental suffering, disgraced and humiliation as well as loss of social status and incomes, Tshs. 50,000,000/= damages for embarrassment he suffered upon being arrested and put under Police custody and eventually in Remand Prison and Tshs. 100,000,000/= general damages. In response to the claims, the defendant filed a Notice of Preliminary Objection through which he indicated his intention to pray the court that it dismisses the suit with costs an grounds that. 1. The plaintiff does not have a cause of action against the defendant and no cause of action is disclosed. 2. The suit is bad in law for suing a wrong person. 3. The suit is bad law for non-joinder of parties. 1 - Along with, the Notice of Preliminary Objection, the defendant filed a Witten Statement of Defence and the Counter Claim against the plaintiff. He did so on 22/10/2012. In the counter claim the defendant claims against the plaintiff for the payment of a total Tshs. 200,000,000/= being special and general damages suffered and still being suffered and incurred by the defendant as a result of the breach of contract occasioned by the plaintiff thereby causing loss of income and business disturbance. For no apparent reasons, the defendant absented himself in court. He was last in court on 6/2/2014, represented by Mr. Michael Mwambanga and Edwin Enos (Advocates). He was served with a Notice of Date of Hearing sometime on 2/11/2015 requiring him to appear in this court without fail on 3/11/2015. On 23/3/2016, this court granted the prayer made by Mr. Living Kimaro (advocate for the plaintiff) to have the suit against the defendant proceed ex-parte and the counter claim dismissed with costs for want of prosecution. The court ordered for ex-parte hearing and the following issues for determination were framed by the court. 1. Whether the defendant did fraudulently and improperly make a false statement against the plaintiff at Oyster Bay Police Station. 2. It the answer in the above issue is in the affirmative, whether the plaintiff was arrested, detained in the police station lock-up, charged and prosecuted on the basis of the statement. 3. Whether the plaintiff suffered in any way as consequences of the defendant's acts. 4. What reliefs are the parties entitled to. 2 With a view to establishing the plaintiff's case two witnesses were called and testified in court. They are JACOB ELIKANA MURO (PW.1) and BWIRE BITA MAGERE (PW.2). In short the plaintiff's case in as that on 25/5/2011 of 10.00 pm PW.1 was at his home when he was arrested by the police officers who assaulted and hand caped him before he was taken into the Pickup police motor vehicle to Oyster Bay police station. This happened in the presence of his children and neighbours. At the police station he was not heard of anything and put into a lock-up. At 1.00 am he was taken from the lockup and his statement was recorded. It is when he came to know that he was being accused of obtaining money (Tshs. 4,500,000/=) from CHARLES MALYA pretending that he will lease his house to him. He was completely not knowing that Charles Mallya and by then he had no house to lease. The one he had was under construction. After recording the statement, he was brought back into the lockup. In the morning the plaintiff was taken to Kinondoni District Court where he was charged with Obtaining Money by False Pretenses. PW .1 produced a copy of the charge sheet to be exhibit and it was admitted in evidence marked as Exhibit Pl. He pleaded not guilty to the charges. The plaintiff added that there was no time when he defendant attended the court though he summoned. That indicates that the case was a fictitious one. The same was eventually dismissed for want of prosecution as it is evidenced by the court proceedings in Criminal Case No. 250 of 2011 of Kinondoni District court which he produced and admitted in evidence and marked Exhibit P2. It is also the testimony of PW.1 that in the case the Defendant was both a complainant and witness as it is clearly shown by the facts of the 3 case prepared by the prosecution a copy of which was tendered and admitted in evidence marked as Exhibit D.3. The plaintiff concluded by stating in evidence that from the case he has severely suffered. He has lost his time and he could not travel abroad for his business. His reputation to the family and public at large is destroyed and that he has lost and spent a lot from the case. As a result of the case he has developed Heart and Blood Pressure diseases which took him to India for treatment. His business has collapsed and suffered loss of more that Tshs. 300,000,000/=. He has been psychologically tortured. The plaintiff therefore prays for payment of compensation for tortures, disturbances, treatment to the tune of Tshs. 300,000,000/= and costs of the suit. The plaintiff's testimony is supported by that of PW.2, an employee of PW.1. From 2007 and 2014 PW.1 was assigned to supervise the Survey Plaza owned by the plaintiff. As a supervisor PW.2 rented the building which was ready for use sometime in 2013, to those who applied for and accepted by management. He first came to see CHARLES MALLYA shown to him by police officers at Oyster Bay police station on 25/5/2011 in the morning when he visited the plaintiff who was under police custody. PW.2 told the court that there was no time when Charles Mallya came requesting to be rented the plaintiff's house. Only the VODACOM and PRIDE (T) LTD who sometime in 2013 applied for renting the building were accepted. That is the whole evidence in this matter. Going by it, the court is satisfied that sometime in 2011 Charles Godfrey Mallya (Defendant) came to the Police Station at Oyster Bay complaining against the plaintiff. The 4 later, was therefore arrested and brought to the police station where he was charged with Obtaining Money by False Pretenses as it is clearly shown by the charge sheet tendered in court as Exhibit P.1. Part of Exhibit P.3 (facts of the case against the accused/plaintiff) reads as follows:- "3. That the accused person on the same date, time and place as per facts No.2 above, with intent to deceive or defraud did obtain cash money Tshs. 4,500,000/= from one Charles s/o Godfrey Mallya by false pretenses, pretending that he will be able to rent him a business house while in fact it was not true" Reading both the charge sheet (Exhibit P.1) and the Statement of Facts (Exhibit P.3) it clearly shows that the plaintiff was arrested and then prosecuted, as a result of the defendant's act of playing an active role by bringing the complaint against him. The evidence by the plaintiff also shows that, the plaintiff was discharged from the Criminal Case on 11/4/2912 upon the Republic entering a Nolle Proseque under Section 91(1) on the Criminal Procedure Act. The first issue to be determined is whether the defendant did, fraudulently and improperly make a false statement against the plaintiff at Oyster Bay Police Station. The Black's Law Dictionary, Eighth Edition at page 1445 defines a false statement among other definitions as:- "1. An untrue statement knowingly made with the intent to mislead 2. Making a false, fictitious, or fraudulent representation" 5 - - - ---- ---- From the above I collect that a false or fraudulent statement is a statement related to a material fact and known to be untrue or made with reckless indifference as to its truth or falsity. In the eyes of the law for a statement to be false, it must be untrue knowingly made and that the same must be made with intent to mislead. In a suit based on False statement as this one, the plaintiff must bring evidence that:- 1. The Defendant knowingly made untrue statement against the plaintiff. 2. The Defendant made such a statement with intent to mislead. Going by the adduced evidence, the same is silent as to the fruitfulness or falsity of the statement made by the defendant to the police. It is also silent as to the intention the defendant had in making the statement. What is conspicuous in the evidence is that the plaintiff was reported to the police station by the defendant of having obtained money by false pretense; he was arrested, put in police lock-up, charged in court, remanded in custody by the court, and that the charges against him were withdrawn and was accordingly discharged as the complainant was not attending the court. The fact that the prosecution was not successful does not in itself make the report/statement made to the police by the complainant a false one. Again what is conspicuous in this matter is that, the plaintiff had led evidence purporting to be proving the tort of malicious prosecution which refers to the filing criminal matter that has no probable cause, and which was filed for some purpose other than obtaining justice. In such 6 circumstances if such a case is decided in favour of the accused person, he may turn around and file a civil matter against the complaint for malicious prosecution, seeking damages. The plaintiff in the suit based on malicious prosecution must prove that:- 1. The original case (criminal proceedings) was terminated in favour of the plaintiff. 2. The Defendant filed or prayed an active role in the original case. 3. The Defendant had no reasonable grounds or probable cause to file and pursue the criminal matter. 4. The Defendant filed or pursued the Criminal proceedings for improper purpose. As said before this suit is based on a "False Statement" as it is clearly · shown under paragraph 4 of the plaint that:- "That, on the 10th day of March, 2012 the Defendant herein fraudulently and in properly made a false statement/report of theft against the plaintiff at Oyster bay police station which made the police officer in charge at Oyster bay Police Station to arrest the plaintiff and keep him in the lock up for the whole that day". As the statement made to the police by the defendant has not been proved to have been made knowingly to be untrue and that the same was made with intent to mislead, I will answer the issue above in the negative. With this answer to the first issue for determination, the suit by the plaintiff 7 ..... . . against the defendant cannot stand. The same is therefore dismissed. As the defendant did not take part in the proceedings, no order as to costs is made. JUDGE 22/7/2016 8