juma bilali makame hassan farijala vs stanbic bank tanzania ltd 2011 tzhc 2047 28 february 2011

IN THE HIGH COURT OF TANZANIA (AT DAR ES SALAAM) Civil Case No. 5 of 2007 JUMA BILALI MAKAME @ HASSAN FARIJALA...... PLAINTIFF VS STANBIC BANK TANZANIA LTD.......................... DEFENDANT JUDGMENT Date of last Order: 02 12-2010 - Date of Judgment: 28 02-2011 - JUMA, J.: The Plaintiff Juma Bilali Makame @ Hassan Farijala, brought action by plaint, claiming a total amount of Tanzanian Shillings 267,600,000/= damages based on tort of malicious prosecution. The Defendant is Stanbic Bank Tanzania Ltd., sued because the Plaintiff believed that it was the Defendant bank who in the first place had deliberately and without probable and justifiable cause moved the police to arrest him on 22nd April, 2003. The Plaintiff’s case is premised on the grounds, firstly, that the Defendant maliciously set the police upon him alleging that he had committed three offences of forgery, uttering false document, attempt to obtain money by false pretence. Secondly, he was arrested by the Police and detained at Central Police Station Dar es Salaam for a day and remanded at Keko Prison for another eight days. Thirdly, Plaintiff avers that he was sick at the time of his arrest and apart from preventing him from getting medical attention, the ordeal of his incarceration humiliated him occasioning mental torture. It is also the Plaintiff’s case that the whole matter was unjustified. Fourthly, the Plaintiff contends that the Criminal Case number 145 of 2003 which he faced attracted intense publicity and wide coverage in the local media. This coverage had the undesirable effect of damaging his character and reputation since he had the intention to contest a Parliamentary seat on the ruling party ticket. Plaintiff strongly believes that his arrest and prosecution was actuated by malice and was not supported by any evidence. The Defendant appeared and filed a written statement of defence admitting that the Plaintiff was arrested for the offences of forgery, uttering false document and attempt to obtain money by false pretence. While denying it maliciously set the Police and prosecution machinery upon the Plaintiff, the Defendant Stanbic Bank gave its own version of the events that led to the arrest and prosecution of the Plaintiff. Defendant avers that on 14th March 2003 the Plaintiff opened account number 0140011187301 at Defendant Bank by depositing Tshs. 100,000/= as prescribed by the bank’s regulations. A month later on 15th April 2003 the Plaintiff returned to the Defendant bank this time with a cheque number 202990 worth 48,750,000/-. He deposited this cheque into his bank account number 0140011187301. The drawer of that cheque was Tanzania Posts Corporation and was drawn in favour of the Plaintiff. When the Defendant sent the cheque for clearance with CRDB Bank (Azikiwe branch) the Branch Manager wrote back to the Defendant Bank to raise an alarm that the cheque was "strange" implying that it was not genuine. The Defendant was advised to take appropriate legal action at least to deter recurrence of similar strange cheques. Defendant summoned the Plaintiff who explained that he had received the questionable cheque from Tanzania Posts Corporation (TPC) as payment for the work he did for TPC. The Defendant called the police who arrested the Plaintiff and took him to court to face charges at the Resident Magistrate’s Court (Kisutu). Following his acquittal, the Plaintiff believes that his being reported to the police by the Defendant amounted to malicious prosecution for which he is entitled redress under this civil suit. It is common ground that the Plaintiff is suing on tort of malicious prosecution. The tort of malicious prosecution is designed to balance two competing basic interests of our society. On one hand it is of the interest to our society if those suspected of having committed or planning to commit an offence are reported to the police and are taken to court to face criminal charges. There is also on the other hand the need to guard against abuse of legal process by malicious or false accusations against innocent persons. The tort of malicious prosecution is committed where there is an abuse of the law enforcement process by maliciously setting the law in motion on a criminal charge. Only two witnesses testified in this suit, one for the Plaintiff and another for the Defendant. The Plaintiff testified in support of his own case whereas Christopher Msengi, the Operations Manager of the Defendant bank testified in Defendant’s defence. The counsel, Mtanga for the Plaintiff and Ngatunga for the Defendant agreed on three issues for determination of this case. First issue is whether there is cause for malicious prosecution. The second issue is whether the Defendant is liable for malicious prosecution. The third issue centres on kind of reliefs the parties are entitled to. For purposes of this suit it is sufficient to note that the principles governing the tort of malicious prosecution are well settled. As restated by Chipeta, J. in the case of Jeremiah Kamama v Bugomola Mayandi 1983 TLR 123, for a suit for malicious prosecution to succeed the Plaintiff must prove simultaneously first, that he was prosecuted; secondly the proceedings complained of ended in his favour; thirdly, the Defendant must have instituted the prosecution maliciously; fourthly there was no reasonable and probable cause for such prosecution; and fifthly, the damage was occasioned to the Plaintiff. My evaluation of evidence that was presented by two sides will be guided by these settled principles governing the tort of malicious prosecution. On the issue whether there was any prosecution for purposes of malicious prosecution, it suffices to say it is clear from pleadings and evidence that it was the Defendant bank which in the first place informed the police about the strange cheque. Police subsequently arrested the Plaintiff and laid out criminal charge against the Plaintiff at Resident Magistrate’s Court. Christopher Msengi, Operations Manager of the Defendant (DW1) testified that he knew the Plaintiff as one of the customers of the Defendant bank operating a current account. According to DW1, it was not the Defendant but the police who filed a criminal case against the Plaintiff. That police were only called in when the Defendant learnt of the strangeness of the cheque number 202990 which the Plaintiff had deposited in his current account. The Plaintiff under cross examination testified that it was the fraud officer and the driver of the Defendant Bank who took him to the police. The fact that the Defendant called in the police is not disputed by the Defendant who point out at a letter dated 17th April 2003 from CRDB Azikiwe branch Manager (Mrs. N.M. Ndosa) to the Defendant. By this letter which was admitted in this suit as Exhibit D3, CRDB exhorted the Defendant to take necessary legal action to avoid any future recurrence of strange cheques. The next issue as to whether the criminal proceedings in criminal case number 145/2003 at the Resident Magistrate’s Court (Kisutu) ended in Plaintiff’s favour should not detain me much longer in light of the Judgment of the trial criminal court (Nkane-RM) a copy of which was admitted in this suit as Exhibit PI. It is clear from this copy of the Judgment the criminal counts facing the Plaintiff were all dismissed on 1st April 2005 and the Plaintiff was acquitted because the prosecution case left a lot of doubts. I am satisfied that the Plaintiff has successfully proved that the prosecution ended in his favour in form of an acquittal. For purposes of this suit, I will spend more time on the two remaining ingredients constituting the tort of malicious prosecution: that is, whether the Defendant had any reasonable and probable cause for setting into motion the prosecution of the Plaintiff; and whether, the Defendant acted with malice when setting into motion the events that finally led to the criminal prosecution of the Plaintiff. In so far as reasonable and probable cause is concerned the case of Fernandes v. Commercial Bank (1969) E.A 482 correctly restates the settled position of law that what amounts to "reasonable and probable cause” depends on facts in individual cases. Again, this Court in Mboya v. Kitambia and Others HCD No.168 also enunciated the principle that if the Defendant knowingly makes a false report as a result of which an innocent person is sent for trial he will be liable as a prosecutor even if the prosecution was not technically his. Restatement of law is also found in Hawkins, J.M. Hicks v. Faulkner (1878) 8 Q.B.D. 167 at 171: ... an honest belief in the guilt of the accused based upon full conviction founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty. It is impossible to enumerate all the factors which may be relevant in deciding whether there was reasonable and probably cause. The Plaintiff strongly believes that the Defendant bank had no reasonable and probable cause to set the Police into motion against him. Plaintiff contends that the Defendant did not allow the Police adequate time to carry out their own criminal investigations. Through the evidence of Christopher Msengi (DW1), the Defendant believed that it had reasonable and probable cause to involve the police. According to DW1 the Plaintiff was not indiscriminately 6 / singled out for prosecution by the police but it was Plaintiff’s link to the strange cheque which led to his arrest and prosecution. That it was the Plaintiff who on 15th April 2003 deposited cheque number 202990 worth Tshs. 48,750,000/= in his current account number 0140011187301 and filled the requisite deposit slip. Apart from the name of the account holder [Juma Bilali Makame] the deposit slip had the signature of the depositor. DW1 pointed out that the signature on the deposit slip was similar to the specimen signature which the Plaintiff had provided the Defendant when he opened his current account. According to Mr. Ngatunga the learned counsel for the Defendant, the judgment of the trial Resident Magistrate’s Court at Kisutu (Ms. Nkane-RM) which acquitted the Plaintiff suggests that there were probable cause to involve the police, "In the final analysis all counts are dismissed and the accused is acquitted because the prosecution side have left a lot of doubts in their evidence and the court resolves the doubt in favour of the accused. - Page 4. I will with respect agree with Mr. Ngatunga the learned counsel for the Defendant that the acquittal of the Plaintiff in criminal case does not imply that Defendant bank had no reasonable and probable reasons to report the strange cheque to police for possible criminal action against the Plaintiff. It is evident from the Judgment of the subordinate court that the Plaintiff was acquitted because the prosecution did not satisfy the trial Resident Magistrate’s Court that the strange cheque was written by the Plaintiff and bore his signature. The trial criminal court had wondered why the prosecution did not bring in handwriting experts from the Identification Bureau or any witness familiar with Plaintiff's business to testify on handwriting on strange cheque and deposit slip. The nature of acquittal does not in my view imply that that there was no reasonable and probable cause for the Defendant bank to involve the police. Court of Appeal in the Abdul-Karim Haji vs. 1. Raymond Nchimbi Alois, 2. Joseph Sita Joseph, Civil Appeal No. 99 of 2004- Court of Appeal of Tanzania, at ZANZIBAR (unreported) settled the law to the proposition that once a crime is committed at their premises and the incident is reported to police, the defendant who report the commission of crime cannot for purposes of the tort of malicious prosecution be said to have reported the incident without probable cause even where the defendant mentioned the name of the plaintiff without at that time being certain of Plaintiff’s involvement in the reported crime. From evidence presented, I am of the considered opinion that the Defendant bank was entitled to immediately report to the police about the strange cheque which the paying bank (CRDB) had returned to the Defendant under a covering letter with a recommendation of a further legal action. Bank officials, like other law abiding citizens are encouraged to report incidents of crime whenever these occur. Tort of malicious prosecution is not intended to prevent the reporting of commission of offences to the law enforcement organs. In the present case, there was reasonable and probable cause for police to be involved to investigate the strange cheque to determine if it was the Plaintiff 8 who signed the cheque which was deposited in his account. It was reasonable on the part of the Defendant to honestly believe that the strange cheque and deposit slip probably bore signatures similar to specimen signatures which the Plaintiff left with the Defendant when he opened his current account. In my view, any ordinary, prudent and cautious bank placed in the position of the Defendant bank will report the strange cheque to the police. I am of the considered opinion that the Defendant had reasonable and probable cause for reporting the strange cheque to police. The remaining issue of whether the Defendant bank was actuated by malice when it drew the attention of the police to strange cheque is closely tied to the issue whether there was reasonable and probable cause to set the police into motion. As I said earlier, there is no doubt from the evidence on record that the initial information that led to the arrest and prosecution of the Plaintiff emanated from Defendant Bank. On the aspect of whether the Defendant acted with malice, the Plaintiff thinks that it was the Defendant who prevailed upon the police to lock-up him up in their police custody. Plaintiff also testified that the police had no time to carry out investigations because of the pressure from the Defendant. Denying that malicious intention was behind its report to the police, Christopher Msengi (DW1) testified that the Defendant had no prior enmity with the Plaintiff. What the Defendant did in the circumstances of the case was to report to the police in compliance with the duty of banks to report such incidents to police. 9 It is clear from the foregoing that the Plaintiff relies on alleged pressure on the police as proof that decision of the Defendant was actuated by malice. Apart from his own testimony, the Plaintiff did not bring any further evidence to corroborate his assertion. It is clear from the judgment of the trial subordinate court (Exhibit PI) that two police officers testified for the prosecution against the Plaintiff. Investigating police detective CpI Revocatus (No. E. 9133) testified that he interrogated the Plaintiff who denied all allegations and that Plaintiff claimed that he was given the strange cheque by one Joseph who wanted to withdraw money using Plaintiff’s account. Detective CpI Abbogust (No. E. 6666) also testified on how he interrogated the Plaintiff. That at first the Plaintiff admitted that the cheque was his, but later he claimed that the cheque belonged to one Joseph Kimweri. I have, with respect, failed to discern any element of malice in the report which the Defendant made to the police which led to the arrest and prosecution of the Plaintiff. In my opinion the criminal prosecution of the Plaintiff was not actuated by spite or ill-will or indirect or improper motives. While it is evident that it was the Defendant who alerted the Police of possible commission of crime, the Defendant in my considered opinion performed its duty to inform the Police because there was a strange cheque which needed further investigation. The defendant cannot in the circumstances of this case be regarded to have been actuated by malice or ill motive when he set into motion the process leading to the prosecution of the Defendant. Further, I can without hesitation state that malice in 10 the tort of malicious prosecution is negated wherever there is reasonable and probable cause to report a commission of a crime to law enforcement organs. From the foregoing, the Plaintiff has failed to prove that the Defendant instituted the prosecution against him maliciously, and without any reasonable and probable cause for such prosecution. The suit is hereby dismissed with costs. Orders accordingly. I.H. Juma, JUDGE 28 - 02-2011 DELIVERED in open Court this 28 day of February 2011 in the presence of Mr. Mtanga, Advocate (for the Plaintiff) and Mr. Ngatunga, Advocate (for Defendant). I.H. Juma JUDGE 28 - 02-2011 li