ludovick mbona vs consolidated holding corporation limited 2013 tzhc 2249 13 december 2013

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 245 OF 2001 LUDOVICK MBONA ...................... PLAINTIFF VERSUS CONSOLIDATED HOLDING CORPORATION LIMITED ....................... DEFENDANT JUDGMENT Shangwa, J. The plaintiff in this case sued the defendant for malicious prosecution and prayed for specific damages of TZ Shs. 220, 000,000/=, general damages, exemplary damages, interest on the decretal sum at 20% per annum from the date of filing the suit until payment in full and interest on costs at the Court’s rate of 12% per annum from the date of judgment until payment in full. The plaintiff is a businessman. He used to supply timber products and stationeries at Tabora. He was a Managing Director of Nadhifu Enterprises Ltd at Tabora. In 1987 during the month of March, the officer of NBC (National Bank of Commerce) reported him to the police for having stolen money from the Bank and for economic crimes involving occasioning loss to the Bank. Following reports to the police, he was arrested and charged in the District Court of Tabora in Economic Criminal Case No. 25 of 1987 and in the Court of the Resident Magistrate at Tabora in Economic Criminal Case No. 21 of 1987. In 1990, he was committed by the said Courts for Trial by the High Court at Tabora. After being committed for trial, two Economic Crime case files were opened in which he was charged with various offences namely Economic Crime Case No. 7 of 1990 and Economic Crime Case No. 3 of 1990. In 1994, the Republic entered a nolle prosequi in respect of both cases and he was discharged. Immediately after being discharged, he was rearrested, charged and prosecuted in the District Court of Tabora in Economic Crime Case No. 1 of 1994 and Economic Crime Case No. 3 of 1994. On 29th October, 1998, the charges were dismissed and he was acquitted on all counts. Before the commencement of hearing this case which has been pending in court for more than 12 years or so since when it was presented for filing on 27th July, 2001, four issues were agreed upon by Mr. Shayo for the plaintiff and Mr. Mwandambo for the defendant. These issues are as follows: 1. Whether the defendant prosecuted the plaintiff in the criminal charges as alleged in the plaint. 2. Whether the defendant acted with malice and without reasonable and probable cause in prosecuting the plaintiff. 3. Whether the plaintiff suffered any damage and injury as a result of the criminal prosecutions. 4. What reliefs are the parties entitled to. From the above issues, it can be seen that the court is called upon to determine as to whether or not the defendant prosecuted the plaintiff as alleged. If so whether the defendant acted with malice and without reasonable and probable cause and whether or not following his prosecution he suffered damage and injury. In his testimony, the plaintiff told this Court that in Mid April, 1987, he travelled from Tabora to Dar es Salaam to collect his Tipper Lorry from K.J. Motors. That while he was in Dar es Salaam, the Director NBC Tabora telephoned him and asked him as to whether he had asked the Branch Manager NBC Tabora namely Mohamed Hamisi Mtani to draw TZ shs. 3,750,000/= from his account and he replied him that he had not done so. That when he went back to Tabora, he contacted the Director NBC who asked him to give him further explanations in writing. That he also contacted the NBC Operations Manager called Abas Mustafa Kyobya who asked him not to report the matter to the police but he did not agree with him. That when he reported the matter to the police, the NBC Bank Manager Mohamed Hamisi Mtani and Mary Kazengo and John Maporu who were the NBC Bank accountant and supervisor respectively were arrested by the police and that after two days, he was also arrested and taken to the Central Police Station where he was locked up for three days. That during those days, he was interrogated and his house was searched and his documents were seized. That the NBC fraud officers namely Mark Muhili, Athumani Mwambe and Jacob Swai who were present during the search led the police as to what documents should be seized. That after searching his house, he was returned to the Central Police Station Tabora and that on the following day he was charged in the District Court of Tabora with various offences on twenty eight counts. That the police opened a joint charge involving him, Mohamed Hamisi Mtani and Mary Kazengo and that all those charges related to withdrawals of money from his Bank account. That the District Court remanded him in custody for two months before he was released on bail. It can be seen at this juncture from the plaintiffs own testimony that the one who prosecuted him was not the defendant in its private capacity. The one who did so is the Republic. However, although the one who prosecuted the plaintiff is not the defendant, the one who initiated the prosecution against him, is the defendant who suspected him of conspiracy with its officers to defraud the Bank through criminal rackets. The next thing to be considered is whether in initiating the prosecution against the plaintiff, the defendant did so with malice and without reasonable and probable cause. In his testimony, the plaintiff told this Court that in 1980 he was a popular big businessman supplying timber and stationeries in Tabora, Mwanza and Musoma. That he was trading in the name of NADHIFU ENTERPRISES LTD. That TZ Shs. 3,750,000/= were withdrawn from his bank account by the NBC Branch Manager Mohamed Hamisi Mtani, his accountant Mary Kazengo and the NBC supervisor John Maporu. That they did so in order to offset their deficit and that they were terminated from employment. That he was prosecuted by the defendant for no good cause. The Chief Manager Investigation, Jacob Swai who testified on behalf of the defendant told the Court that the plaintiff had an account with NBC Tabora Branch which he operated in the name of NADHIFU ENTERPRISES. That when NBC Inspectors conducted the general inspection at Tabora Branch, they suspected that certain cheques deposited in the plaintiffs account were fictitious. That the inspectors showed him three cheques which had been deposited in NADHIFU ENTERRISE’S account from which money was withdrawn. That two of those cheques indicated that they had been issued by Morogoro Municipal Council. That he sent an officer one Mark Muhilu to go to Morogoro and verify about these cheques. That when the said officer came back from Morogoro, he reported that they knew nothing about those cheques and that they did not know the payee of those cheques. That one of the cheques indicated that it was issued by A. Kaswaka of Musoma who had an account at Mukendo NBC Branch. That his officer went to Musoma and found that in the said Branch there was no account in the name of A. Kaswaka except in the name of E. Kaswaka. That thereafter, he concluded that the bank’s money had been stolen by using the Bank Account operated by the plaintiff and that there was a syndicate between the plaintiff and their Branch Manager to defraud the Bank. That their Branch Manager Mohamed Hamisi Mtani was imprisoned by the Court after trial and that the plaintiff was acquitted. During cross-examination, Jacob Swai told this Court that he was not called to testify in the Criminal Case in which the plaintiff was acquitted and that had he been called to do so, the plaintiff would have been imprisoned. He went on to say that the plaintiff was not the drawer of those cheques. The following facts are clear proof of the motive behind his prosecution. At one time, the NBC Branch Manager Mohamed Hamisi Mtani, his accountant Mary Kazengo and the NBC Supervisor John Maporu withdrew TZ Shs. 3,750,000/ = from his account No. 03806 which he used to operate in the name of NADHIFU ENTERPRISES. Later, he realized that they had done so in order to cover their deficit. The plaintiff resolved to report them to the police. However, both the Director NBC at Tabora and the NBC Operation Manager did not want him to report them to the police. All the same, he reported them to the police and that they were arrested following his report to the police against them. Their arrest sparked hatred between him and the NBC Director together with the Operations Manager who were unhappy about the plaintiffs act of reporting their colleagues to the police. The NBC Chief Manager Investigation who was in charge of NBC business in Tabora Central Zone was also unhappy about the plaintiff. As a result, he called NBC inspectors from Dar es Salaam and Dodoma for conducting general inspection of his Bank Account. The NBC inspectors are Mark Muhilu and Athuman Mwambe respectively. After inspecting his account, it was decided that he should be charged jointly and together with NBC Branch Manager Mohamed Hamisi Mtani and the Branch Accountant Mary Kazengo. All of them were charged with various offences relating to fraudulent withdrawals of money using his account. It is quite obvious that the plaintiffs arrest by the police and the decision to prosecute him was a result of Malice. It was a result of hatred between him and NBC Principal Officers who were not happy with his report to the police which led to the arrest and prosecution of their follow officers. In law, arrests and prosecutions sparked of by hatred such as the plaintiffs arrest and his subsequent prosecutions are malicious. The record shows that the plaintiff was prosecuted in the District Court of Tabora and in the court of the Resident Magistrate at Tabora and in the High Court at Tabora on various charges amounting to 44 counts. He was discharged on all counts by the High Court at Tabora the late Katiti J, following a Nolle Prosequi being entered by the late Rutagwerela on behalf of the Republic. As it has been pointed out in this judgment, after being discharged, he was re-arrested, charged and prosecuted in the District Court of Tabora but all charges against him were dismissed and he was acquitted on all counts. No appeal was preferred against his acquittal. It can be seen therefore that his prosecution was not only malicious but it was traumatic as well. The evidence given by D.W .l Jacob Swai who was the only witness on the defendant’s side that in 1987, he was told by inspectors who conducted the general inspection that certain cheques which had been deposited in the plaintiffs bank account were suspected by them to be fictitious and that he was told by his officer Mark Muhilu whom he sent to Morogoro to find out whether or not one cheque which indicated to have been issued by Morogoro Municipal Council and deposited in the plaintiffs account was fictitious is nothing but hearsay. All this shows that the plaintiff was prosecuted without reasonable and probable cause. No wonder therefore that his prosecution ended in his acquittal. The issue which comes for consideration now is whether or not the plaintiff suffered any damage and injury as a result of his criminal prosecutions. This issue is an obvious issue which has to be determined in his favour. First of all, his reputation was lost and damaged for having been charged on several counts with the offence of theft and occasioning loss to a specified authority whereas he did not commit any of them. Secondly, he suffered mental torture and instability for being charged with the offences which he did not commit. Thirdly, he lost his freedom and liberty during the days he spent in lock up at the Central Police Station at Tabora and the months he spent in remand prison before he was granted bail by the court. Fourthly, he lost business income for several years while attending his case counting from the date when he was arrested by the police to the date when he was acquitted by the court. The last issue to be determined by this court is to what reliefs are the parties entitled in this case. In my opinion, the plaintiff is entitled to judgment. Thus, I enter judgment in his favour. The defendant is not entitled to any reliefs as there is no counter claim. The defendant has to pay general damages to the plaintiff which I assess at TZ Shs. 60,000,000/= (Sixty Million) plus interest at court rate of 12% per annum from the date of this judgment until payment in full. Lastly, the defendant has to pay the plaintiff costs of this suit to be assessed by the Taxing Officer. r.'U * 7* A.Shangwa ^ \ '1px... J JUDGE X L *y&Ji •y . 13/12/2013 Delivered in open court this 13th day of December, 2013 in the presence of the plaintiff and Mr. Mgaya for Mr. Obed Elias for defendant. 13/12/2013