20201118 TZHC Dar es Salaam

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 70 OF 2017 1. Justine Chacha 2. Rajabu Athumani } Plaintiffs VERSUS 1. The Inspector General of Police -2~ The oco-. stakishari Police -station- - 3. W.P. Maimuna 4. The Attorney General Defendants JUDGEMENT Date of last order: 14.08.2020 Date of Judgement: 18.11.2020 Ebrahim, J: The Plaintiffs in this case, Justine Chacha and Rajabu Athumani jointly sue the Defendants for damages for wrongful arrest, false imprisonment and malicious prosecution. The Plaintiffs claim that the basis of their claim began on 22nd July 2015 when motor vehicle with registration no. T792 BEY Make Toyota Coaster property of Justine Chacha driven by Rajabu Athumani was involved in an accident at 1 Ukonga Mombasa. It could be gathered from the plaint that on that particular day at Ukonga Mombasa Bus Stand, a motor vehicle make Noah knocked a motor cycle with registration no. T884 CSE make Sanlg. The said motor cycle lost control and knocked Toyota Coaster which was stationary at Ukonga Mombasa bus stand. The motor cycle was ridden by one Camilius Charles. According to the averments in ______ the _p[9in1,_0D_1At_t,_ S_e_pJemb_eI, 20.t5-tbe-Defer:1dar::1t-S -act-u0t-ed-wit-t9- - - - - malice and without any probable cause charged both Plaintiffs with careless driving and causing bodily injuries to one Camilius Charles vide Traffic Case No. 416 of 2015. For that both Plaintiffs were remanded at Keko Prison from 14th September to 17th September 2015 for the 1st Plaintiff (3 days) and from 14th September to 26 th September 2015 for the second Plaintiff (l 2days). On 2nd February, 2016 the OPP entered nolle prosequi under section 91 of the Criminal Procedure Act, Cap 20 RE 2002 and both Plaintiffs were discharged. The Plaintiffs therefore claims that their confinement in remand prison and prosecution has exposed them to insurmountable indignity, public odium and scandal which led them to suffer- psychological and mental anguish. On account of which both Plaintiffs are praying for 2 general damages amounting to TZS 75,000,000/- each with interest and costs of the suit. Upon being served with the Plaint, the 1st , 2nd and 4th Defendants filed · their Written Statement of Defence whereby save for noting the contents of paragraphs 1,2,3,4,5,6, 18 and 22; and noting to the extent of existence of the map and the Traffic Case No. 416 of 2015; and also . - - nolin(;ftne existence ofa cnarge- s-heel, the res-t of the conte-nts of the Plaint were denied and some were neither denied nor noted as the Defendants claimed that they were facts best known to the Plaintiff. Therefore, the Plaintiffs were put into strict proof thereof. In this case the Plaintiffs were represented by advocate Abraham Senguji; and the Defendants were represented by Mr. Erighi Rumisha, the State Attorney. At the end of the hearing of the case, the court ordered parties to file their final submissions on/before 28.08.2020. I shall refer to the submissions in the course of traversing substantive issues. The following are agreed issued for determination by the court: 3 1. Whether the Plaintiffs were unlawfully arrested, remanded and maliciously prosecuted for careless driving and causing bodily injuries. 2. If the answer to the issue is in the affirmative, whether the Plaintiffs are entitled to compensation and to what extent. 3. Relief(s} if any parties are entitled to. In a bid to prove their case, the Plaintiffs called four witnesses. Mr. · Justine Makukumbo Chae ha, the 1st Plaintiff who testified as PWl. PWl testified before the court that it was - - on 22-nd July - ·- -- - 2015 when -· - - - - he -was - at - home and received information that his car has been involved in an accident. He went to the scene and found his driver has already been taken to Field Force Police Station. He went to collect his driver and the sketch map was drawn. The car and the driver were taken to Sitaki Shari Police where he bailed the driver and left the car at the police station. Thereafter, on 14.09.2015 together with PW2, they were taken to court charged with the offence of careless driving and causing . harm to the motor cyclist. He said he was charged after failing to surrender an insurance cover note. He tendered a charge sheet in respect of Traffic Case No. 416/2015 which was admitted as "exhibit PEl ". He stated further that, he asked to be allowed to find sureties but the police denied, hence he was remanded at Keko Prison for 4 three days i.e. 16.09.2015 when he was again taken to court. In responding to cross examination questions, he admitted that when his car was involved in an accident, it had no insurance. He responded also that he does not remember to be read substituted charge and that the charge does not have stamp of the court. Responding on what he signed in the plaint, he said that he was given charge sheet O[l 1_4.09.2015_ whilst. exhibit PEl- is -Of-28.-08.-2Ql-5. -PW-2, Mr.- Rajab - Athuman Urembo, told the court that on 22.07.2015 around evening time, he was driving the motor vehicle at Ukonga Mombasa area, the property of PW 1. He said the car was knocked over by the motor cycle at driver's side while it was stationary. He explained the occurrence of the accident that it was ·caused by one car make Noah which knocked the motor cycle then the motor cycle accelerated and knocked the car driven by PW2, Toyota Coaster No. T792BEY. He said the driver of Noah did not stop. After that he was taken by Field Force Police saying that he had knocked the police. He was taken back at the scene by Traffic Police where the map was sketched. He explained further that the Noah came from side road and knocked the motor cycle which was in the main road opposite to PW2's 5 direction. PW2 said that they were then taken to Sitaki Shari Police Station where PW2 was bailed by PWl and not kept in the lock-up. He testified further that on 14.09.2015 they were taken to court charged with the offence of careless driving and causing harm to the motor cyclist. He recognised exhibit PEl written on 28.08.2015 but he said it was read to them on 14.09.2015. He said they prayed for bail at the . Magis-trate but colJld not be bG1iled until l2-days later and the case___ . lasted for three months. Responding to cross examination questions, PW2 admitted that they were not granted bail because they did not fulfil bail conditions. Responding further he said that he had driven the car for three months and he has neither tendered insurance cover nor his driving licence to prove that he· was a driver. PW3, Mr. Salim Mohamed Ally, a security guard at Mombasa Ukonga narrated the occurrence of the accident that on 22.07.2015 that he saw a Coaster coming from the bus stand going to the main road. Thereafter the car, Noah and bumped into a motor cycle which caused the motor cycle to knock the Coaster at the driver's side. He said the Noah did not stop and headed to Gongolamboto. He said police went into the area and apprehended the driver. Responding to cross examination 6 questions, PW3 stated that the accident occurred at 0630hrs, in the · morning. Responding to re-examination question, he insisted that the accident occurred around 0600hrs to 0630hrs. PW4, Mr. Adi Francis briefly told the court that around l 800hrs on 22.07.2015 at Mombasa · Ukonga, a car make Noah coming from feeder road bumped into a motor cycle. The motor cycle then knocked a Coaster at the driver's --side. TAe-Noah-ran awey and-Re did-.r=:1ot knGw what-Aappened to.t-Ae driver. On the other hand, Assistant Superintendent of police, Mr. Deus Shata testified as DWl. He said he was the one who was assigned with the case file on the accident which occurred on 22.07.2015 at Mombasa, Ukonga around l 800hrs to 1830 hrs. He said Traffic Police went to the area and found the driver of Toyota Coaster with Registration No. T792BEY and the motor cycle with registration no. T884CSE. He testified further that the police started investigation on the drivers of the car and the motor cycle. On the initial investigation, it was discovered that . Toyota Coaster had no insurance and on the very same day, both PWl and PW2 were availed police bail. He tendered charge sheet on Traffic Case No. 416/2015 which was admitted as exhibit "DEl ". He 7 explained the charge sheet in court that the DPP filed charges for two people. PW2 - driver was charged for careless driving and causing bodily injury and PWl was charged with the offence of permitting a person to drive a motor vehicle without a valid certificate of insurance. He explained further that the driver was supposed to make observations before going to the main road. Hence, the · •. -apprehension-was-done-accordi-ng--to tt:1e law.-He explained--f-urther- that the Plaintiffs were then taken to court where they were availed their right to bail but could not meet bail conditions immediately; but they were released after meeting the conditions. He said on 02.02.2016, the DPP entered Nolle under section 91 of the Criminal Procedure Act, Cap 20 RE 2019. Responding to cross examination questions on exhibit PEl he said that the charge sheet shows that PWl and PW2 on 22.07.2015 were driving a car and carelessly caused an accident. He explained further that in exhibit DEl in the particulars, the name Justine Chacha has been struck-off. He admitted that the charge sheet is not written that it has been amended or substituted and does not also have a 'court stamp. It shows it has been read on 28.08.2015. On re-examination DWl said that exhibit DEl was 8 admitted in court and then certified on 05.08.2015. Ms. Anunciatha - Leopold, Principal State Attorney and Senior Prosecutor testified as DW2. She recognised exhibit DEl as a charge sheet of the traffic offence prepared by prosecution office for PWl and PW2. She also recognised the amendments/corrections she made on the charge sheet on 14.09.2015. She explained that the amendments concerned _ PW l and the.J st and 2od count. She said s-he struck-out the name-of the 1st Plaintiff on both counts and endorsed on all corrections she made as Deputy Prosecuting Officer after discovering that both 1st and 2nd counts do not concern the 1st Plaintiff. Thereafter the charge was read over to the accused persons on 14.09.2015 It was on __ 02.02.2016 when the charge was withdrawn under section 91 (1) of the Criminal Procedure Act, CAP 20, RE 2002. She stated further that the investigation is ongoing an upon completion of the same, the accused persons could be charged again on the same offence. Responding to cross examination questions, DW2 stated that the law . ' provides for substitution or amendment of the charge at any time. She stated also that there is no law which state that amendments can be made orally or written. She explained also that it is the practice of the 9 I. court that where amendments do not go to the root of the matter or ·. · do not jeopardize or harm the accused persons, the amendments could simply be made by cancelling the concerned part, signed and dated by a person who made such corrections. The amendment is done after the accused has also agreed. She differentiated between amendment and substitution that in substitution another charge is filed but in amendment, it can be strike off. Differentiating between exhibit PEl and DEl, DW2 said that in DEl the name Justine Chacha was cancelled in count one and two. She said she was the one who prepared the charges and amendments. Responding to cross examination questions, DW2 said that they did not file substituted charge because typographical error did not affect the contents of the particulars and jeopardize the right of the accused person. In this case, the Plaintiffs prays for judgement and decree for wrongful arrest, false imprisonment and malicious prosecution. Indisputably is the fact that the Plaintiffs were arrested, sent to court where they were remanded into custody for 3 and 12 days respectively and were later released on bail. The Plaintiffs were also 10 later discharged under the provisions of section 91 (1) of the Criminal Procedure Act, Cap 20.RE 2019 . . In their submission, Counsel for the Plaintiff stated that the Defendants instituted the charge against the Plaintiffs intentionally without just . cause as they had no reason to charge them with careless driving and . causing bodily harm. He explained that the PWl S vehicle was at 1 --- - - - -- ·-- - - -- .. - stationary position and it was bumped by the motor cycle which lost control after being bumped by Noah. He said the police asked PWl to release his insurance cover and after refusing to release the same he was immediately remanded at the Court's remand room. He cited the case of Jeremiah Ka mama VS Bugomola Mayan di [ 1981] TLR 123 where this court laid down four elements to be proved in malicious prosecutions. He stated further that the evidence is clear that the 1st Plaintiff was not a driver on that day and as for the 2nd Plaintiff, the car was at stationary position. He argued therefore that the predominant wish of the Defendants was to vindicate the law. The Defendants on their part argued in their final submission that in essence the Plaintiffs were charged with an offence of careless driving 11 and permitting a person to drive a motor vehicle without a valid certificate of insurance. They submitted that the evidence shows that PW2 caused and accident and he was driving a motor vehicle without insurance. Counsel for the Defendants further cited the case of Paul Valentine Vs. Bonite Brothers Limited, Civil Appeal No. 109 of 2004 in listing four elements to be met before a case for malicious _ prosecution _co_uld_ be successful. In- explaining -the elem-ent-s - for malicious prosecution, Counsel for the Defendants cited the case of Hicks Vs. Faulkner (1878)8 QBD 167 which was cited with authority in the case of Benedict Rusagala Vs. Inspector General of Police and Two Others, Civil Case No. 11 of 2011, which in defining the phrase "reasonable and probable cause" held as follows: 11 an honest belief in the guilt of the accused based upon a full •• • conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinary 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" ... In their submission they also argued that the act of the DPP of discharging the Plaintiff does not amount to malicious prosecution. In cementing this argument, they cited the case of Edward Celestine 12 and Others Vs. Deogratius Paulo (1982) TLR 347 which was cited in the case of Wilbard Lemunge Vs. Father Komu and Registered Trustees of the Diocese of Moshi, C.ivil Appeal No. 8 of 2016. In the case of Wilbard Lemunge (supra) it was held that: "we are alive as to who becomes a prosecutor when the issue of malicious prosecution comes in, that is a person who takes steps with a view of setting in motion legal processes for the eventual prosecution _of the plaintiff ... " And it was further held in the case of Edward Celestine and Others (Supra) that: "dismissal of criminal prosecution or acquittal of an accused does not create any presumption of absence of reasonable probable cause" Again, they argued also that the Plaintiffs have failed to prove that the Defendants instituted a case with an ill will and that the Defendants had other ill intent than a purpose of bringing the Plaintiff to justice. They fortified their stance by citing the English case of Brown Vs. Hawkes (1891) 2 QB 718 at page 723 which was cited with authority in the case of Chegele Mwita Chacha Vs. E. 1994 C/Cpl Juma and 2 Others, Civil Case No. 147 of 2016 which defined malice to mean that: 13 "malice is some other motive that a desire to bring to justice a person whom he (the accuser) honestly believes to be guilty". They concluded therefore that the police had probable and reasonable cause to arrest and prosecute the Plaintiffs. Indeed, it is the established principle of law that for the plaintiff to establish the case of malicious prosecution, he/she must cumulatively ·----· -- - prove the existence --- -- --· -- of four elements. These -- ·- --- ---- elements -· ·-- - · were laid down by Samatta J, (as he then was) in the case of Hosia Lalata Versus Mwasote ( 1980) TLR 154 - see also the cited cases of Jeremiah Kamama (supra) and Paul Valentine Mtui (supra). Those elements are; 1. That he was prosecuted by the defendant. 2. That the prosecution ended in his favour. 3. That the prosecution was conducted without reasonable and probable cause. 4. That in bringing the prosecution the defendant was actuated by malice. Beginning with the first element that the Plaintiffs were prosecuted by the Defendants, this is undisputable fact. The term prosecution in this 14 aspect has a wider meaning. It does not only confine to representing a case at a court of law, it begins with the first process of initiating the legal process. This position was well explained by hon. Chipeta, J (as he then was) in cited ,case of Jeremiah Kamama (supra) when he observed as follows: "The first question that arises, therefore, is when one is said to be a '--"-prosecutor'' for the purpose of a suit for damages _for_m_alicLo_us_____~ - prosecution? In my opinion, a person becomes a prosecutor in his - regard when he takes steps with the view to setting in motion legal processes for the eventual prosecution of a person whom he alleges has committed a crime. For instance, if A tells the police that B has stolen A's shirt and as a result that Bis arrested and charged with the offence of theft, A will be said to have set in motion B's prosecution. A, therefore, will be said to be a prosecutor in a suit for damages for malicious prosecution" · It is not disputed therefore that the police set in motion the legal process by arresting the Plaintiffs who were later prosecuted in court. Before I proceed to discuss the issue as to whether the matter ended in favour of the Plaintiffs or not, I find it apt to first address the issue as to whether prosecution was conducted without reasonable and probable cause. 15 The Plaintiffs in tendering exhibit PEl, the charge sheet argued that they were maliciously prosecuted for the offence of careless driving and causing bodily injuries to one Camilius Charles. As a result, they were subjected to imprisonment of 3 days for the 1st Plaintiff and 12 days for the 2nd Plaintiff and further prosecution at the court of law. OW 1 told the court that when the accident occurred, it was - - - -- --- discovered that the motor vehicle driven by the 2nd Plaintiff had no insurance. Therefore, both PWl and PW2 were taken to Stakishari police and were availed bail on the same day. The fact that the motor vehicle had no insurance was admitted by both Plaintiffs. DWl tendered a charge sheet on Traffic Case No. 416/2015 which was admitted as exhibit "DEl ". He explained that the driver was supposed to make observations before going to the main road; hence, the charge of careless driving and causing bodily harm. I went through both exhibits PEl and DEl and discovered that they contained three counts. In PEl, the 1st and 2nd counts were charged to both Plaintiffs. However, the third count of permitting a person to drive a motor vehicle without a valid certificate of insurance was 16 · charged to the 1st Plaintiff alone. DW2 explained to the court that on 14.09.2015 she made amendments to the charge sheet where she struck out the name of the 1 st Plaintiff on the 1st and 2nd count and endorsed all the corrections and the new charge was read over to ,, the Plaintiffs. On 02.02.2016, the Plaintiffs were discharged under : section 91 (1) of the Criminal Procedure Act, Cap 20, RE 2019. She stated further that the amendments are permitted by law and the law does not prescribe as to whether it should be done orally or written and that the same could be done by simply cancelling the concerned part, signed and dated by a person who made such corrections. The amendment is done after the accused has also agreed. Indeed, as observed earlier, exhibit DEl contains alterations and amendment to the charge where the name of the 1st Plaintiff was struck off on the 1st ahd 2 nd counts. The Plaintiffs denies that the new charge was not read over to him. Firstly, I must state here that, the law i.e. section 234(1) of the Criminal Procedure Act, Cap 20 RE 2019 allows amendments, alterations or substitution of the charge sheet at any time of the trial. In so far as the amendments and alterations are 17 concerned, the law has not stated the mode that the same should be done. However, it has been a practice in many cases where the amendments do not prejudice the accused, the same could simply be made by striking off the defective part and the said part signed and dated by the person making the correction. The court record and recognises the corrections and the corrected version is then read over t-e---t-t:1e-accuseGl person. ------ Again, much as the Plaintiffs claim that the charges were not read over to them, there is no proceedings brought in court to confirm that indeed the new charges were not read over to them. They both agree the charges were read over on 14.09.2015 from the charge sheet prepared on 28 th August 2015. That being the case, it is also true the 3rd count concerning permitting a person to drive a motor vehicle without a valid certificate of insurance c/s 4(1) and (2) of the Road Motor Vehicles Insurance Act, Cap 169 RE 2002 was read over to him. The third count was th'e basis of prosecution against the 1st Plaintiff because the motor vehicle subject of this case was his property and · _accordingly it had no insurance by the time it was involved in an accident. In fact, PW2 told the court that he was driving the car back 18 to the owner, PW 1 and PW 1 admitted to be the owner of the motor vehicle with registration no. T792 BEY Toyota Coaster. PWl even evidenced to go to the scene of the accident after hearing that his car has been involved in an accident and he went to bail his driver. It is therefore clear here that even if we are to say that the 1st Plaintiff was charged with the 1st and 2nd account, he was also charged with the 3rd count. -Hence, the issue-that-the l st Plaintiff was prosecuted without probable and reasonable cause does not arise as the charge sheet could be amended at any time as indeed it was amended, and the charge included the offence concerning the 1st Plaintiff alone from the beginning. Therefore, in view of Benedict Rusagala's case(supra), which I subscribe to, there was reasonable and probable cause to prosecute the 1st Plaintiff. More -so, being inspired by the holding of the case of Chegele Mwita Chacha Vs. E. 1994 C/Cpl Juma and 2 Others (supra); I find no malice on part of the Defendants but rather an honest belief to bring the 1st Plaintiff to justice for allowing his car to be driven without an insurance which is contrary to the law. 19 Coming to the 2nd Plaintiff, he was charged with careless driving and causing bodily harm. The Plaintiffs brought PW3 and PW4 to the stand to prove that they were near the vicinity when the accident occurred. However, PW3 told the court that the accident occurred in the morning whilst the evidence is clear that the accident occurred in the evening. This is a major discrepancy going to the root of the case - hence touching-the credibility of the--witness; Ac:cordingly,--I disc0rd the evidence of PW3. As for PW4, he testified that he saw Noah knocking the motor cycle and the motor cycle knocked the Coaster. However, when he was cross examined, he said there were many people at the area and he heard from many people. He admitted also that he is not an expert in knowing who caused the accident and - that the accident occurred at 1800hrs. He also said that he was about 15mtrs from where the accident occurred. Obviously as he said that there were many people and he also heard people saying about the accident, his testimony could not be fully relied upon that he evidenced the whole incident. The issue as to who actually caused the accident could be answered upon preponderance of evidence considering that DWl also testified that according to their records, 20 PW2, the driver was supposed to make observations before going to the main road. As such, there are two versions of the facts on what happened on that particular day. Plaintiffs saying that the car was stationary; and the Defendants saying that PW2 entered into the main · road without making observations which caused an accident. The fact that PW2 was involved in an accident, I would say without nesitation that the police onicer had reasonable calJse to take him to the police for further questioning and investigation as it is their duty to do so. I am of the firm view that it was not as if the police merely picked PW2 from aside the road or he was a mere bystander. He even admitted that he was driving a car without an insurance. That alone is an offence which the police had all probable cause to arrest him for questioning and it cannot be said to be actuated by malice. The above notwithstanding, there is also ample evidence from PW2 and DWl that both the Plaintiffs were availed police bail on the same day of the incident. The police then prepared a charge sheet and took them to court. At the court PW2 agreed that they were offered bail but could not fulfil the conditions on the same day hence they were remanded until they fulfilled the conditions set by the court. It is 21 again obvious here that the issue of bail at that stage was due process of the law, and it cannot be termed as false imprisonment nor that the police had malice against both Plaintiffs. Furthermore, the law requires for a case on malicious prosecution to succeed, a case must· end in favour of the Plaintiff. The evidence is clear in this case, that the Plaintiffs were discharged under section 91 (1) of the Criminal Procedure Act, Cap 20 RE 2019. The discharge under section 91 (1) of Cap 20 is not an absolute acquittal or a finding of not guilty. It is a discharge under which prosecution side can initiate similar proceedings on the same facts after obtaining more evidence. I can therefore safely say that, a discharge under section 91 (1) of the CPA does not mean does not mean that the Plaintiff won the case in the sense that the matter ended in his/her favour. Rather, the Plaintiffs in this case were discharged and the final determination of the case on whether the Plaintiffs were guilty or has been yet to be adjudicated upon. It is on that background; I find that save for the first element that the Plaintiffs were prosecuted by the Defendants, the Plaintiffs case has 22 not proved the 2nd 3rd an·d 4th elements of malicious prosecution. Accordingly, I find that the Plaintiffs were not maliciously prosecuted for the offences they were charged with as there was probable and reasonable cause which was not actuated by malice. Coming to the 2nd and 3rd issues, by finding that the Plaintiffs have ·failed to prove their case, it is obvious that they are not entitled to any --·--- ·- compensation. Accordingly, I dismiss the Plaintiffs' case wffhEosts. Accordingly ordered. 18.11.2020 23