khalid abdu vs karipresh jansinh ashel 2009 tzhc 17 24 september 2009

IN THE HIGH COURT OF TANZANIA AT MTWARA DC. CIVIL APPEAL NO. 15 OF 2007 Original Mtwara RM’S Court Civil Case No. 14 of 2006 KHALID A B D U ............................................... APPELLANT VERSUS KARIPRESH JANSINH ASHEL ............RESPONDENT Date of Last Order - 02/6/2009 Date of Revision Order - 24/9/2009 JUDGMENT MIPAWA, J. The appellant Khalid Abdu lost a suit on malicious prosecution against the Respondent Karipresh Jansinh Ashel where he had claimed to be paid the total sum of Shs. Ten Million only 10,000,000/= as a damages he suffered as a consequences thereof. The gist of the matter in the lower court was that the plaintiff was hired by the defendant on 31st day of October, 2005 to ferry him at a place commonly known as “maduka makubwa”. The plaintiff averred that while they were on the way his taxi run shot of petrol somewhere at a junction styled “SKOYA”. The appellant (Plaintiff) informed his client and went allegedly to collect some petrol in a plastic container at a nearby station. When he came back the plaintiff was surprised to note that his client had absconded and shortly 1 afterworlds some policemen came and arrested him. He was taken to a police station and put in a lock up and a charge of attempted robbery was preferred on him. On 31st day of October, 2005 he was taken to the court of law to answer the charge of attempted robbery or armed robbery? He was remanded and refused bail because the offence was unbailable. After being in remand prison for two weeks he was later bailed out. Neverthless the charge was withdrawn under section 225 (4) of the Criminal Procedure Act and the appellant (plaintiff) was discharged. “) On his part the defendant now respondent in this appeal told the lower court that on 31st day of October, 2005 at about 9.00 am the plaintiff as usual took him from his business premises, near the market place, on his way to EXIM Bank to deposit money. After boarding the said Taxi driven by the appellant [plaintiff] they took Uhuru road heading to EXIM Bank and when they reached at the place called Skoya junction near NSSF Regional building, the Taxi driver started keeping on the right hand side taking another direction as if going to Bandari [Port] or harbour and suddenly stopped the taxi : ) about 10 metes along the Bandali road. The respondent [defendant] asked the appellant [plaintiff] as to why he has taken another route and stopped suddenly, but there was no response from the taxi driver - appellant. The Respondent [defendant] told the lower court further that the appellant [plaintiff] started pulling the handbag he had, the Respondent defendant decided immediately to open the door of the car pull back his hand bag and run to a nearby building belonging to an Indian and from there he phoned the police who came 2 immediately, he took them to the place where the said taxi was and the plaintiff was arrested i.e the appellant they want together with the police and wrote each his police statement and then the police told him that he would be called when the investigation is complete. The learned Resident magistrate addressed himself on the issues whether or not there was reasonable and probable cause for the defendant/respondent Karipresh Jansinh Ashel to prosecute the plaintiff and if the answer is in the affirmative whether the said prosecution was malicious. After evaluating the evidence and ) revisiting the law of malicious prosecution, the learned Resident Magistrate in his well reasoned judgment concluded that; .... It seems to me that that was the mere suspicion (sic) that the plaintiff had an intention of robbing him. The only thing left , is 'whether that suspicion was bonafide, judging from the circumstances.... It appears to me that that was a bonafide suspicion and for that reason the 4th element as to whether there was no reasonable and probable cause for such prosecution is answered in the negative.It follows almost automatically that prosecution was not actuated by malice..... The learned Resident Magistrate therefore entered judgment in favour of the Respondent/defendant. The appellant has filed several grounds of appeal; 1. That the learned magistrate erred in fact and in law in reaching to the conclusion that the Respondent had reasonable and probable cause in prosecuting the appellant. 3 2. That the learned magistrate erred in fact and law in holding that the prosecution was not actuated by malice while there is clear evidence that the appellant had no intention of robbing the Respondent. 3. That the learned magistrate erred in fact and law in reaching to the conclusion that the Respondent’s suspicious was bonafide. Submitting in the first ground of appeal the appellant asserts in his submission drawn gratis by the national organization for legal assistance [NOLA] that in determining the Respondent’s lack of reasonable and probable cause to report the matter to the police, the appellant was only called to collect the Respondent to the destination known as “maduka makubwa” and that the agreed destination was not EXIM Bank as alleged by the Respondent. The appellant then avers that if the Respondent had money and intended to deposit the same to the Bank as alleged why did he not instruct the appellant to go directly to the respective Bank? That any reasonable person at Mtwara knows that EXIM Bank is not situated at Maduka mawili. In v ) defining the reasonable and probable cause, the appellant quoted the case of Hicks v. Faulkner [1878] 8 Q BD 167 at page 171 as follows: .... An honest belief in the guilty 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 ordinary prudent and cautions man, placed in the position of the accused, to the conclusion that the person changed was probably guilty........ 4 Concluding on this ground the appellant states that the time on which the incident happened could be taken into account and that the appellant could not have dreamed that the Respondent had money then stopping at the place agreed could not alone reasonably render a prudent and reasonable person to believe that the appellant intended to rob the Respondent. Although the Respondent in his submission did not argue in accordance with the grounds of appeal and the submission by the appellant so as to have a good flow of argument the best way I think for me is to mix the Respondent’s submission in order to suit the flow of arguments in the appellant’s written submission. In answering the first ground of appeal and having due regard to what the appellant had submitted it seems to me that looking on the submissions by the Respondent. . The appellant was an accustomed taxi driver to the Respondents businessman] because the Respondent states that he used the service of the appellant to ferry him at various destination now and then. “.... The respondent a businessman now and then used to hire the taxi driven by the appellant from his shop at main market to EXIM Bank to deposit money....” Although the appellant has submitted that he was told to ferry the Respondent at “Maduka mawili” and not EXIM Bank and that he could not. dream that the appellant had money with him. I think by and large that for security purpose the Respondent was not obliged to tell the appellant exactly that he had some money with him which he wanted to deposit at EXIM Bank and therefore he needed his service of ferrying him by his taxi to EXIM Bank to accomplish the task of deposing money. On the 5 •contention that the appellant could not have dreamed that the Respondent had money the assertion in my view is not in black and white correct. This is because the appellant and the Respondent are known to each other through the appellant’s taxi service and therefore the appellant knew that the Respondent is a businessman [Asian origin]. In his submission the appellant asserts that he could not have dreamed that the Respondent had money however in my view that assertion is coated with superflours elements because in criminology an evil minded person can and always they do, play a game of chance by studying the surroundings and therefore strike. To them it is unreasonable to have all that investigation, it suffices only if they have an element of belief that a certain “business tycoon” might be carrying something or anything. It is also my settled opinion that for a taxi driver to run out of petrol is a dangerous undertaking and can be interpreted differently, first that it was a negligent act by the taxi driver to start the ignition and proceed with a safari while not sure as to whether there is enough fuel in his taxi. Secondly it can be interpreted that it was an act of camouflage to hide something bad and therefore take the opportunity either to pretend that they were robed by thugs - preprogrammed thugs or if not preprogrammed thugs the appellant- taxi driver himself could do the job of robbing his passenger or that there could be only a co-instance of being robbed by an un-expected people of bad intentions. On all those circumstances it is clear that a reasonable and probable cause of suspecting anything would click in the mind of any life loving person. The learned Resident Magistrate 6 who determined the case in the lower court was correct to find that there was reasonable and probable cause on part of the Respondent having had in his mind [the learned magistrate] the corner stone, case on the cases of malicious prosecution the case of Jeremiah Kamana vs. Bugomola Mayandi [1983] TLR.134 where this court held that:- ... For a suit of malicious prosecution to succeed the plaintiff must prove simultaneously that; (a) he was prosecuted by the defendant (b) that the proceedings complained of ended in his favour (c) that the defendant instituted the prosecution maliciously. (d) That there was no reasonable and probable cause for such prosecution. (e) That damages occasioned to the plaintiff. Now coming to the second ground of appeal that the learned magistrate erred in fact and law in holding that the prosecution was not actuated by malice while there is clear evidence that the appellant had no intention of robbing the appellant. On my part I am very surprised with this ground of appeal because whereas the appellant asserts in that ground that "... there was clear evidence that the appellant had no intention of robbing the Respondent...” however there was no evidence which was adduced before the lower court in the criminal case concerning the appellant. Nevertheless be that as it may be the appellant have submitted as follows: ... the tort of malicious prosecution seems to be overlapping between malice and lack of reasonable and probable cause..... if the defendant had no genuine belief in plaintiff’s guilty, it will be evidence of both malice and lack of reasonable cause.... We need not to over emphasize that the Respondent by setting the matter into motion, had no genuine reasons to believe that he was suspicious of being robbed. The absence of reasonable cause renders . the accusations malicious...: The Respondent on his part asserted that the criminal charge was withdrawn without any reason of the court or the prosecution side, and the respondent had never been involved in any means in prosecuting the appellant hence and therefore it is difficult to conclude that the proceedings ended in his favour. The Respondent submitted further that as to the question whether he [Respondent] instituted the prosecution maliciously he submitted that he is not the one who instituted the said case allegedly because it is the police who prosecuted him and that it was upon the police to sort out and decide which case is to be prosecuted. Therefore the appellant ought to have prosecuted the police who prosecuted him. The Respondent quoted the case of Malz vs. Rozen [1966] I WLR 1008 in which the court held that: .... However incriminating, is not equivalent to launching prosecution because the decision to prosecute critically is not in the defendant’s hands. But if he gives information and proceed to investigate and lay the charge and then give evidence against the plaintiff that amount to getting the law into motion..... I respect the above decision of the court [foreign court] in Malz vs. Rozen [1966] IWLR 1008. However I think rightly that giving 8 evidence against the plaintiff in my view is likely to be more than getting the law into motion c’est-a-dire it extends more to the effect that that person now becomes active and instrumental into setting the law into motion and therefore becomes liable for malicious prosecution. A recent case in the kings Bench Division of the High Court of England gives as a clue of the matter it was held in the case of Wiffer v. Bailey [1985] IKB that; ... To prosecute is to set the law in motion, and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question, and to be liable for malicious prosecution, a person be actively instrumental in so setting the law in motion. If a charge is made to a police officer and thereupon makes an arrest the party making the charge, if liable at all will be liable in an action for false imprisonment on the ground that he directed the arrest and therefore it is his own act and not the act of the law...... It is true as the Respondent asserts that in our country prosecution is conducted by the police or the office of the Director of Public Prosecution, but frankly prosecution cannot had if there was no person behind the curtains to complain to the police who have the task of investigating the matter and laying the charge to the person clothed with judicial authority i.e. laying the charge before the court of law on behalf of the citizen of the United Republic whose rights of freedom has been trodden or whose life is under threat or was threatened as a result of a criminal act. The case of Mbaraka William vs. Adama Kisute 1983 TLR 358 Mushi, J. quoted by the Respondent is somehow different from this case because the case in 9 Mbaraka'dealt more, I think, with the information or statements to the police officer which could lead to the effect that someone has committed an offence or an information which enables the police to repress a crime etc. However in our case a victim was confronted face-a-face with a threat of being robbed his money by a taxi driver and he had all reasonable and probable cause to have such a belief. It is my view that the learned Resident Magistrate was correct to hold that indeed there was a step to putting the law into motion and that was the prosecution which was had. I entirely and respectfully agree with the learned trial magistrate in his well reasoned judgment that; .... It was not at all in dispute that the plaintiff.... Was prosecuted and the person responsible for setting the said prosecution in motion was none other than the defendant... after suspecting the plaintiff that he had had an intent of robbing him of the said money he phoned the police who came immediately ..... arrested and charged [the plaintiff/appellant] with the offence of attempted robbery [vide] ..... criminal case no.218 of 2005..... The third and last ground of appeal by the appellant that the learned magistrate erred in fact and law in reaching to the conclusion that the respondent’s suspicious was bonafide. Submitting the appellant asserts that in setting the [law] case into motion the respondent’s suspicion was not bonafides taking into account the test of a reasonable man in Mtwara. That since the respondent has been using the services of the appellant for almost a long time, it means that it was unreasonable for the Respondent to suspect the appellant. 10 The appellant further submitted that the act of stopping a car in the place that cannot be termed dangerous was unreasonable on part of the respondent to entertain suspicious because the act of taxi drivers running short of fuel in Mtwara is rampant because of economic factors and fear for taxi driver to put a lot of fuel lest they could be robbed of their taxe(s). Answering the question on bonafide suspicion the learned Resident magistrate stated in his judgment that; ....what is clear is the fact that after the plaintiff had suddenly stopped the defendant took the opportunity to rush to a nearby building belonging to a certain Indian from which he phoned the police. It seems to me that, that was the mere suspicion that the plaintiff had an intention of robbing him. The only thing left, is whether that suspicion was bonafide. Judging from the circumstances ... it appears to me that there was a bonafide suspicion....the 4th element as to whether there was no reasonable and probable cause for such prosecutions is answered in the negative. It follows almost automatically that prosecution was not actuated with malice..... The quotation in extenso, from the judgment of the learned trial magistrate is clear and as I have already said earlier supra that the act of the taxi driver to stop suddenly at a place which is not a destination of the client leaves a lot to be desired and we are not told by the appellant who claims that he had been ferrying the Respondent now and then in his taxi that it to say the Respondent is his client for a long time. However we are not told by the appellant whether or not the act of running shot of petrol while with the Respondent in the taxi was an order of the day, had happened only 11 that time or what-have-you. Now if the stopping of a taxi suddenly was the first time, the Respondent has all the reasons to believe that there was a pre-programmed episode that was going to take place soon. It is superfluous for the appellant to argue that running short if petrol in Mtwara is a rampant phenomenon as there is no evidence proven so far on that aspect. I entirely and respectfully agree with the learned Resident Magistrate that the Respondent had all the reasons to harbour suspicious and take precautions lest he could be dumped into a deadly quagmire and fall prey of “hungry wolves”. In the event and on what I have said supra this appeal lacks merits and it is bound to fall. I proceed to dismiss it therefore with cost. I . S . I\ lll| u ru ««u Judge 24/9/2009 Delivered today in the presence of both parties. Judge 24/9/2009 Further rights explained. I.S. Mipa\ Judge 24/9/2009 12