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•' . _, ' .' .. . . civ.ri 'AP~AL. No.· q7 OF _2qq1 ( ,, · • ,. BET\1IEE,N . . ... . ·,,., •' .· . , . JAMES FUNKE GWAGILO ••••.•, •.••••• , • • • • • • APPELLANT . .'. AND '' -. • f'.,-r_. r : ~: •. THE ATTORNEY GENEP.AL · .... . , , , " 0. 0 ,~ 0 ' 0 0 ··- , 0 0 0 0 • 0 O .,,i;,SPONDm·lT o ;, 0 O '0 ~- ,.,,J;..J .:J~ ~ ." , ~·\ ' . ·•1 ,· (ipp~al 'from· the Judgl]le~t of the ,High . .. . qour_t o·f -Tanzania' at l)a.r ~s Sa],~;m)" . ' (>. t-· dat'e?- 25th April., ·2oop. 1r • ef',(,iJ., ·_J . ' in (, ~;., l1.9__~ivi]-. Cape No •.. 3:?J ;,f_ 199~ . .. ------- .,. J·UDG.MENT c ' .. i. . ·- . ' '' ., , ' ,c. f,pG.~J~.lEAl ~J_.A.: C ' ., ~ '., ~1e_:·_appellant ,:a one-time Prin~'{pal Secretajy and also ' . ' Regio,n_al Development" pirec'for fpr: Tabora· Regfon, during t·he ·1980s, O i I ~ .. ' '• ., I " • ' . was',t~t:ired by the ·Preside_nt in the P\lblic interest with effect ~ •• :t ~ '. , , • • ' :, ~ 0 ' .. ~ • • • ' ~ .; " ,.. • • 'frorl'!,15..• 5.90 by ,a_ le,tter,dated 29.,;2.90. At the time of his ~ . -•~;_.':· ... •" " ...~ .. ··: ~• ~ 'c rE:tireJl1ent he was under interdiction from service', facing criminal ~ . . . ' . ~ 0.,, ... .. 0 • ~ .. 4 • ' i • ). • . ' ' • charges1~ili .Economic Crimes' Case • 3 o{ 1989 before the'High Court ~.-·~",'- .-,~ ',. ' ... No. :.~·,~ • .. t • • 0 .. at ' Tabo;r,a:'. · He was acquitted o.n ,fhe charges in'. A'ugust, 1991. ~. . • ,. July/}i993., he brought actiqn against the Government alleging .. •'•. ' ' ..... ' • . • " ► • • , l,. 0 f ~ ' . ) . • In " unlawful fetirement -and. malicious nrosecution.· ~The, retirement \ • • • ' • 0 ~. • ' • ... ~ ' " • ~ .... • • ' • ·was alleged to be unla~1ful for·'b~ing effected :during the . ',, . .,.. I ' •·•" .interd.iction and was said to be in contraventi,n ·of Regulation : jl .. C. •• •, .,•; •, • ••' ' \ • " •s • • ~ • ~ 0: ,,I 46- (-1)\'.(i). 9( ,t}ie Civil' Ser~ice. Regulations, 19?0, and the , prosecution: was said, to ~e malicious Qn account· qf the acquittal. ' I • ... /2 2 The appellant was claiming in all Shs. 211,916,485.38 made up of ~-· various items of entitlements and damo.ges. ;rhe action was dismissed in its entirety, hence this appeal. The major dispute in the appeal is in connection with the retirement and it may be traced to the f?~t that the trial was handled by two judges. We will dispose of this first. The suit first came before Mwalusanya J. who steered it through the pleadings, disposed ef a preliminary objection, fr8.r.led the issues and heard evidence from the appellant/plaintiff, the only witness on his sid~, as weil a~ evidence of the firpt witness for the defence. The judge then went into premature retirement on personal grounds, The trial was continued before the late Kyando J. who heard evidence from two more defence witnesses, received counsel's final submissions and wrote and delivere'd-the judgment now appealed --- against • • The dispute may further 1'e traced to the fact that after the decic-ion in the preliminary objection, the case put forward by the appellant in hi,s evidence was a radical departure ·rrorn his pleadings. The pleaded case was thc:1.t his retirement_ was wrongful for being effected while he was under inte;rdictiAn, and the written state~ent of defence. addressed that issue. --- A prelimin~ry objection was taken by the defence to the effect that ,the trial court had no i. jurisdiction· to inquire into the exercise Of presidenti-'.J.l powers ~der section ~9 (3) ir the Civil Service Act read with section 23 (2) (a) ther~of. Mwalusanya J. ,..verrule'd the objection but in ; ·1; ' doing so he w6nt on a fishing expediti,m and decided on what other i' irregularities would render the exercise ,of presidenti~l powers unlawful, citing failure to give reasons and fe.ilure to give e. --------- i !' II •.. /3 I ·- ---;--- . .. ~,=-,--,-- - ·. -~---·?. -·.· 3 hearing. That gave an idea to the ap9ellant 1 s side. ',/hen the appellant ga.ve evidenc~, and without amending the pleadings and iss~es, he charged that his retirement v1as wrongful because it was retrospective, because he was given no reasons, and because he was not given a hearing; only lastly did he rner!tion the interdiction, but even this was not pursued by his colilnsel in his final submissfons. · In his judg-nent, Kyando, J. considered. the departure froi;n the ,P~~adings and refused to consider the new ground:$, stating ·thus:. What do the rules· of pleading say in relation to the situation revealed here? Th~ g-meral · rule is that ,a party is bound by his pleadings and should not be'; allowed to succeed on a case net made out in his -=------ - ~ - - - - - - - - - - - ' - - ~ •pleadings ••• In HEMCRI\.ND v • ~EAREYLAL, • ·---- A. 1942 P.c. 64, an Indian case, the Privy • Council cha.ract eriz ed .as irregular t_he procedure of the trial court b allowing evidence to be adduced on pgints not raised \ in the pleo.dings_o.Li.s.sues and held th"'t , this should not have been allowed. without amendm0nt of the pleadings and issues. I see no grotlnds in the instmit c?.se for departing from these general rules of pleading. This is because the :pE:rties had an opportunity to ~mend their respective pleadings and include the points thit were later raised but did not utilize that opportunity. They are now therefore bound by their plendings and the additionnl grounds or points rn.ised nre hereby rejected for 118.ving not been pleaded,,. . .. /4 4 The judge proceeded to dispose of the matter on the graund of I retirement during interdiction which he decided against the I appellan"!. The appeal as it relates to retirement doE!s not challenge that decision but is confined to the unpleaded case. Learned counsel for the appellant Mr. z. -~. Njulumi, who also partly appeared for the appellant at the trial, argued three grounds of appeal in relation to the retirement. They c,11 revolve around failure to give reasons and failure to g:Lve a hearing and will be ta~en together. Mr. Njulurni's central ~ argument is that since Mwalusanya J. had in the preliminary objection decided that those failures rendered the exercise of presidential powers wrongful, Kyando·J. had simply to follow suit and ente.r judgment for the appellant. He further argued that although the two grounds were not pleaded, evidence was • adduced on.them by both sides and ought therefore to have been considered. -He cited Article 107A (2) (e) of the Constitution for the argument that technicalities should not be allowed to defeat substantive justice. _ . , ___ State Attorney Donald Chidowu submitted th~t the matters raised by Mwalu~anya J. were not necessary for the determination of the prelimin.s.ry objection - -~- - ~-- ,,. . .. ----··--·--- but were ob_iter. He said a judge cannot create pleadings for the parties. It seems necessary to restate certain principles r0garding pleadings. The function of pleadings is to give notice of the case which has to be met. A p:rrty must therefore so state his case that his oppon0nt will not be taken by surprise. • ••/5 5 It is als~ to define with precision the matters on which the parties differ and the points on which they agree, thereby to identify with clarity the issues on which the court will be called u ~ o adjudicate to determine the matters in dispute. If a party wishes to plead inconsistent facts, the practice is to allege them in the alternative and he is entitled to amend his pleadings for that purpose. The need to do so may arise at any stage in the trial and if the amendment is one the court can lawfully and conveniently accommodate,, it would be obliged to consider the same even though not initially pleadedo In other words, in order for an issue to be decided it ought to be brought on record and appear from the conduct of the suit to have been left to the court for decision. ·.:rn ~~~!-L~!!..follard ~d- f'.1_?}:r.._~, . .[f.93!!/ 1 KB 628, 634, Scrutton LJ said: 11 Cases .must be decidcd on the issue o.n record; and if it is desired to rais_e. other issues they must be placed on the record by,amendment-~ In the present case the issue on which th~ judge decided the case was raised by himoelf without amending the pleadings, and in my opinien he was not entitled to tal,e I such a course. . l i This, decision was applied by tha Court of Appeal for Eastern Africa j. i: It is worth repeating that in the case before us the unpleaded I• Ii l issues were raised by the first judge; it shculd also go on record that he achieved this by giving a new· face tc the preliminary -- objection. Whereas the preliminary objectior. stated that ,;the ·7~•7'" - -··~• ' ' < ' ' 6 I I courts have no jurtsdiction to inquire into the exercisa of presidential powers under seetion 19 (3) -of the Civil Service Act,•,; the judge· • . rendered it as :•;The questi""fl is does the Fresident have the authority ' to remove someonft- in the public service in public interest without disclosing what that public interest is?: 1 Even when he felt like paying attention to the substance of the objection, he treated it as subsidiary and could not face up to its true terms. He said: ,;There is another question as to whether this court has jurisdiction to inquire whether the President complied with section 23 (2) (a) of the Civil Service Act No. 16/89.:; By these tactics, al:Jeit with some assistance from the appellant's firs:t cou...'1sel, he :,f~S_q.bJ,~. to create for himself the desired •pportunity to embark on a long and combative essay on public law which was largely irrelev::mt to the subject at hand. • The.dangers of departing from the pleaded case wer= manifest in this instance; the respondent's side virtually failed to marshal eviden~e in defence •. DW1 testified on whether the appellant was I \ entitled to the various heads of minister:Lal claims; DW2 tried to i introduce the appellant's Person~l Particulars Form,conpleted ~n I' first appointment in order to show that he- had reached retirement l I- L ,,, age when he was retired. This was in an endeavour to prove that p 1 there were reasons for the appellant I s retirem&nt whiL the issue ''I i ': was whether any reasons had been giv~n for the retinime~t. The court refused to admit the form since the defence was Leing raised for the first tin~ and would, if accepted, throw the trial into confusion as th2 appellant had denied its authorship. But the court 1.-1ent on to waste valuable time hearing oral ~vidence from •.. /7 7 DW2 on what was ess~ntially the conterit nf the rejected document, I for that was hearsay. Finally, Vd3 1 s bvidence was about the ~ I I criminal prosef'utif'n •.· A careful examination of the record thus establishes that the defence adduced ndI <i!Vidence on the retrospective I nature of the retirement, the failure t,o give reasons or the failure . I i to give a hearing to the appellant. Careful examination again establishes that learned counsel for th e' appellant - never submitted 1 I . at the trial on any of those grounds because, according to him, I they had already been decided by Mwalus?nya JP in the appellant's I favour. He merely invited the court to i declare the appellant an employee of the Government still and P.s i entitled to the various I claims. We think, with respect, the approa~h taken at the trial does not support the argument that the ~ew grounds were left to the ' court for decision, There was a great deal of presumption on the ' i subject which, unfortunately, was encouI[aged by the gratuitous i posturing in the first judge. ! l In Nkulabo v(!.~b~~~ f}.9Tfj EA 10?, Spry VP. observed that while the general rule ·is that a relief hot founded on Pleadings will not be given, a court may allow evidence to be called, and I may base its decision on an unpleaded is 9ue if it appears from the course folL-,wed at the trial that the unpleaded issue hc.s in fact been left to the court for decisinn. He then added: i I accept that as a general statement but I dA not think it can be invok0d to allow the introduction of what amounts tp a new cause i of action ••• If, Lin a def~e.tion casi/, a suit were founded on the aJ.l~gation that I certain words were used and then, without I ·---7· .. ~ i ' ,. l ~,...: .¥~ / ,I //; '/ I ! ' / 8 I • f • any amendment of the pleadings, the plaintiff • was awarded damages on evidence that substan- tially different words were used, no'defendant would know how to prepare his case and injustice rather than justice would result. We agree and find the instant case a typical example of what the learned Vice-President had in mind. The respondent was taken by surprise by the new grounds and this can be seen in the failure to call evidence -on those grounds and the clumsy attempt to prove an irrelevance. We think in such a situation the justice of the case <"..= demands that the unpleaded grounds should be ignored. and that is not subordinating justice to technicalities. Kyando J. also need not have made. further reference, as he did,~·''to the attempt· to prove • the appellant's age for, as already observe~, the evidence on that : l score was hearsay following the rejection 6f the Personal Particulars . .,, ---- Form., We pass on to malicious prosecution. It should be first observed that this tort was based on 'a distinct cause of action which arose on a different date and at a different place. The written statement of def,:::nce gave notice of a preliminc:.ry objection to the misjoinder but it was not pursued. The appellant's retire- ment had absolutely no connection with his arrest, detention and prosecution which ought to have been the basis of a separate suit., The procedure permitted at the comroencerrtent of the suit was overly ambitious and a strain on the rules which we a:-e unable to approve. The appellant 1 s prosecution arose this wa:•r: On the night of 23o_"5.88, he and one Dr. Limbn ~f Kitete Gov,:;rm,1E.mt Hospital at Taborn, reported at the! ~C:>,born police E,tG.tion that they he.ct been 9 I I robbed of a Landrover they had been using visiting villages during I the day. The following morning the same Landrover was used in a ( bank :robbery at Sikonge. Investigations establishetl that some of the robbers had during the previous day been moving around with the appellant and Dr. Limbu in that vehicle. In fact one of those subsequently convicted, a Capt. Limbu,' was a relative Gf Dr. Limbu. It was surmised that the appellant and Dr. Limbu may ha.ve had a hand in the bank robbery and that their report was faked as a cover up. They were therefore arrested and prosecuted for ~onspiracy, giving fals~ informatici'n and robbery with violence, but were acquitted, As rightly observed by Kyando J~. in order to maintain an action for malicious prosecution a plaintiff has to prove, among other things, that the prosecution was undertaken without reasonable and probable cause and was actuated by maliceo The judge held that the appellant had failed to prove these elements having regard to the facts giving rise to the prosecution and the failure to identi_fy the police officer with whom to impute malice, The three grounds of appeal devoted to this subject cont~nd in their totality that u the judge erred in holding as he did. Mr. Njulumi submitted that the prosecution was without rea,sonable and p:robable cause because when the robbery was taking place at Silicn_z:e the appellant was at Tabora.; that it was not necessary t,, poir..t out individual tort- feasors forr· the purpose of proving malice; and that maiice was proved by the fact that the appellant ;1ad_ ;,rev::.ously been cleared on a disciplinary charge and a criminr:,l ch:::•rge b:J.sed on the same facts. • •• /10 10 I ·'· The burden was on the appell,"'.nt tb pro 11e absence of a reasonable I l and probable cause f9r the prose cut ion, a difficult task as he had I I I j • t~ prove a negative 1 In Hicks v. Faul.?le~ (1878) 8 QBD 167, cited by Kyando J., reasonable and probable !cause was defined as an honest I belief in the guilt of the accused, but current thinking is that it is enough if the defendant believes ther~ is reasonable and probable I I cause for the prosecution: see Te!_llpest v •~ S~ow_;ien {_195§ 1 KB 130. Considering the established associ~tidn between the appellant and I the actual robbers so shortly before the robbery and the appellant's I apparent faking of robbery of the Land.rover used in that episode, I any reasonable and objective m,m could be excused for thinking that I there was reasonable and probnble caube for prosecuting, It matters ' I not, really, that the appellant was at the material time not at the I ..... scene cf crime; there are principles ?f aiding and abetting in the criminal law which would constitute ohe a principal offender along j with the actual perpetrators of the crime without being at the I "' 1 scene. On the facts available at the laying of the criminal I information it was not unren.sonable t,o believe th«t the appellQnt I and Dr. Limbu he.d permitted the use df the Lnndrover in the robbery., I We are satisfied that the nppellnnt was unable to discharge the ~ burden cast upon him by the la.w. We agree with Mr. Njulumi, howe1er, that it was not necessary ~to identify 1'the primary tortfeasor fJr the purpose of proving malice. . . I By virtue of section 3 (1) of the Government Proceedings Act, 1967, the Government is subject to all tho!e liabilities in tort to which I it would be subject if it were a private person of full age and ~ capacity, and this liability is not Ihonditi6ne~ upon the identifi•a~ion •••/11 11 - of the primary tortfeasor. In a case like the present where the state was both complainant and prosecutor many players must have been involved in the making of the prosecution. It is sufficient in such a difficult situation to sue the Attorney General as the appellant did. And even without identifying the primary tortfeasor I' it is still possible to prove malice. Malice in the context of 1 I malicious prosecution is an intent t,-, use the legal process for some other than its legally appointed and appropriate purpose. ,- The appellant could prove malice by showing, for uistance, that the ..-- prosecution did not honestly believe in the case which they were making, that there was no evidence at all upon which a r~asonable tribunal c0uld convict, that~~he prosecution was mounted for a wrong motive and show that motive, etc. It was contended for the appellant that malice was manifest in the fact that the appellant had previously .been cleared of similar allegations and we desire to look at this briefly~ First, it is true that d:ur-ing 1987/88 the appellant had faced a disciplinary charge on which he was upon inquiry cleared by Mwaikasu J. That charge, however, alleged, inter alia, that the appellant had scandalized government by borrowing money from a businessman at Nzega knowing that he would have official dealings with the businessman. It is plainly clear that the charge had no rel;;_tionship whatsoever with the sl.lbsequent proselution. It is also true that before being prosecuted for tho economic offence• the appellnnt was initially charged on the snme facts before the District Court in Criminal Caso N"• 265/88. However, he was discho.rgcd therefrom under section 225 (4) of the Criminal Procedure