martin kikombe vs emmanuel kunyumba another 2017 tzhc 2148 20 february 2017

IN THE HIGH COURT OF TANZANIA AT IRINGA DC CIVIL APPEAL NO. 5 OF 2016 MARTIN KIKOMBE ......... APPELLANT VERSUS EMMANUEL KUNYUMBA & ANOTHER ........RESPONDENTS JUDGMENT KIHWELO, J. The appellant herein Martin Kikombe filed the instant appeal challenging the decision of the District Court of Njombe (henceforth "the trial court") in Civil Case No. 13 of 2015 which dismissed the appellant's case of false imprisonment in Civil Case No. 13 of 2015 (henceforth "the civil suit"). This case has a chequered history as it all started way back in 12th October 2015 when the appellant filed the civil suit against the respondents before the trial court claiming among other things Tshs. 30,000,000/= arising from false imprisonment. It was alleged that sometimes in July 2014 and 2015 the respondents made a report to the police vide RB No. MKB/IR/187/2014 and RB No. MKB/IR/502/2015 alleging that the appellant had stolen their belongings as a result of which the appellant was arraigned in the police custody as a criminal suspect and later released on police bail but was required to regularly report to the police on daily basis for a period of three months. It was alleged further that the defendants reported the appellant to the police knowingly that the allegations were baseless and that the appellant suffered serious injury and damage in terms of loss of income during the police confinement, mental agony and psychological trauma. Upon full hearing of the parties the trial court (Hon. C.J. Hemela PRM) pronounced the judgment that was in favour of the respondents. In essence the trial court found out that the appellant could not prove the case. Aggrieved by the decision of the trial court the appellant filed this instant appeal before this court. Before this court as at the trial court parties appeared in person and fended for themselves. That being the circumstances the court directed that the appeal be disposed through written submissions which were dully filed by the parties. In support of the appeal the applicant being a layperson he was very brief. He began by quoting the definition of false imprisonment in Termes de Ta Ley S.V. on Imprisonment approved by Duke and Atkin, U J in Meering's case in which it was defined as; "A false imprisonment o f one is the complete deprivation o f his liberty for any time, however short\ without lawful cause. Imprisonment is no other thing but the restraint o f a man's liberty, without it be in the open field or in the stocks or in the cage, in the streets, in a man's own house, as well as in the common goal; and in a ll the places the party so constrained is said to be a prisoner so long as he hath not his liberty freely to go at a ll times to a ll places whither he w ill without bail or otherwise." The appellant submitted that in the instant case under scrutiny the restriction was complete as the appellant was arrested and detained at police in Makambako and was further required to report on daily basis for three months. He further referred this court to the foreign case of Ram Pyare Lai Vs Om Prakash, 1977 Cri LJ 1984 in which the court held that; "Every restraint o f a liberty o f one person by another is in law an imprisonment and, if imposed without lawful cause, constitutes a false imprisonment which is both a crim inal offence and an actionable tort." He forcefully argued that the trial court grossly erred in failing to properly apply the law. He argued further that for he appellant to recover damages for the tort of false imprisonment, he is only required to prove that he was imprisoned and that the imprisonment was caused by the respondents and that it is not necessary to show that the respondents acted with wrongful intention, malice, negligence or improper motive. He reffered to the foreign literature of P. Atchuthen Pillai, Law of Tort, Eighteenth Edition, Eastern Book Co. Delhi, 2000. He finally prayed that the appeal be allowed the decision of the trial court be quashed and set aside with costs. In response the respondents in their joint written submissions were equally brief. They began by submitting that the trial court rightly arrived at the conclusion it reached as the respondents reported the matter to the police after the appellant was suspected to have stolen the respondents' properties after he broke into the respondents' house. They went on to argue that the report was done pursuant to the law in particular section 7(l)(a) of the Criminal Procedure Act, Cap 20 RE 2002 which obliges every citizen to report to the police any criminal activity in his or her knowledge. The respondents convincingly submitted that they reported the matter to the police who were duty bound to proceed with investigation and since the matter has been taken to the court the appellant should wit and see what the court will have to deicide but on their part there was a probable and reasonable cause to report the matter to the police. To buttress further their line of argument the respondents cited the case of Amina Mpimbi Vs Tabuy Kilongo, Civil Appeal No. 16 of 1984, High Court of Tanzania (unreported) I guess the appellant meant to refer to the case of Amina Mpimbi V. Ramadhani Kiwe [1990] TLR 6 in which the court had the following to say; " It is not required o f any prosecutor that he m ust have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable cause and probable cause for prosecution." The respondents went further to argue that since the appellant is the one who locked the house where things were stolen then there was legitimate and reasonable cause for the respondents to believe that the appellant was the person of interest and therefore report him to the police for further investigation. Finally the respondents valiantly submitted that the appellant miserably failed to prove his case before the trial court. They strongly argued that the appellant could not be in a position to prove the case because the criminal case relating to his arrest is still pending at the District Court of Njombe in Criminal Case No. 26 of 2016. According to them it is trite law that he who alleges a fact must prove the existence od that fact and this is the principle which is clearly stated under section 110(1) of the Evidence Act, Cap 6 RE 2002 and the same was restated in the case of Generoza Ndimbo Vs Blasidus Yohanes Kapesi [1988] TLR 73. Finally the respondents prayed that the appeal should be dismissed with costs. I have carefully examined the arguments raised by the parties. The appellant has cited some foreign authorities I have looked closely at those decisions and I am of the respectful opinion that first of all these authorities are not binding in our jurisdiction and secondly these authorities merely define the tort of false imprisonment but they are not relevant in the instant situation where the appellant locked the doors of the house where the respondents' properties were stolen hence making the appellant not only a person of interest but a real suspect. The respondents have cited two authorities which though relevant but they are not so close to the instant matter before this court. The case of Amina Mpimbi (supra) relates to the duty upon the prosecutor but the instant matter does not involve the prosecutor or even the police but rather the persons who put the machinery of justice into motion namely the complaints. All in all I find considerable merit in the respondents' submissions in that the appellant did not prove his case before the trial court and given the prevailing circumstances the respondents were not only justified to report the matter to the police but also they were duty bound to do so. In my strong opinion the appellant is totally misguided and misconceived when he argued that the fact that the police took time to lodge the criminal case then the respondents were liable for false imprisonment. It is clear to me that the law is settled and clear when it comes to the tort of false imprisonment. I will proceed by defining first the term and then examine its ingredients before finally examining whether in the instant case under scrutiny all those elements existed or not. False imprisonment is defined to mean the total unlawful restriction of a person's freedom of movement. It includes unlawful arrest. Black's Law Dictionary, 9th edition defines false imprisonment to mean a restraint o f a person in a bonded area without justification or consent It goes without saying that one must prove the following in order to establish false imprisonment; 1. Restraint of the Plaintiff 2. The restraint must be unlawful 3. The act of restraint must be done maliciously, and 4. The restraint must be against the plaintiff's will. It must be noted that unlike malicious prosecution false imprisonment is actionable perse, i.e without proof of actual damage. There is no dispute that the appellant was arrested by the police in relation to theft of the respondents' properties and was arraigned for custody at the Makambako Police Station before he was released on bail. So imprisonment or restraint has been proved. The question is was the arrest justified and hence lawful? Kyando J. (as he then was) in the case of James Funke Gwagilo V. Attorney General [2001] TLR 455 in answering the above question he pointed out that, this is for the defence to establish for as it has been stated in Halsbury's Laws of England, Volume 38 (3rd edition), page 765, paragraph 1266: The gist o f false imprisonment is the mere imprisonment; the Plaintiff need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he proves that he was imprisoned by the defendant; the onus then lies on the defendant o f proving justification. In order for one to establish justification the question that has to be addressed is, was there a reasonable and probable cause in prosecuting the plaintiff in this case? This court in the case of Amina Mpimbi V. Ramadhani Kiwe (supra) had this to observe quoting the case of Herniman V. Smith (1938] AC 305: It is not required o f any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is defence, but whether there is reasonable and probable cause for prosecution. In that case the House of Lords approved a definition of reasonable and probable cause, by Hawking J. in Hick V. Faulkner (1878) 8 Q.B D 167, 171 as: An honest belief in the guilt o f the accused based on a fu ll conviction, founded upon reasonable grounds, o f the existence o f a state o f circumstances, which, assuming them to be true, would reasonably lead an ordinary prudent and cautious man, placed in the position o f the accuser, to the conclusion that the person charged was probably quilt o f the offence imputed. In his evidence, the plaintiff says nothing about the Criminal Case No.26 of 2016 which up until the filing of the written submissions in this matter was still pending in court. It is the outcome of this case which will indicatewhether or not the arrest of the appellant and his prosecution was li with or without reasonable or probable cause. Otherwise the respondents have indicated that the appellant was arrested justifiably following his own conduct of locking the doors of the house where theft occurred hence making him suspect number one. I therefore hold that there was reasonable and probable cause in the plaintiff's arrest and subsequent prosecution that is still res subjudice. Turning to whether the act of restraint was done maliciously, I am compelled to refer to the settled principles on how to establish malice in the tort of malicious prosecution. Kyando 1 in the case James Funke Gwagilo V. Attorney General [2001] TLR 455 while citing Stevens V. Midland Countries Railway (1854) 10 EX 352 at page 356, Alderson B put thus; Any motive other than that o f sim piy instituting a prosecution for the purpose o f bringing a person to justice, is m alicious motive on the part o f the person who acts in that way. Throughout the plaint and the evidence before the trial court the appellant does not seem to have particularized malice leave alone leading evidence to prove that aspect. It would have done more justice if the appellant provided more particulars in the plaint to indicate malice on the part of respondents who bore malice towards him that actuated his arrest and prosecution. I therefore find that the appellant did not prove malice. I have no doubt that there was restraint of the appellant and that the same was against his will but since the other two elements (unlawfulness of the restraint and malice) have not been proved, I am in no doubt that there was no false imprisonment. I don't buy the argument by the appellant that the trial court did not evaluate the evidence on record based on the analysis above given. Before I finally wind up my judgment I wish to remark in passing that I went through the judgment of the trial court and I did not buy the line of argument taken by the trial magistrate in particular the fact that the appellant did not prove malicious prosecution and that he should wait for the Criminal Case No. 26 of 2016 which is pending before the District Court of Njombe then see whether it was malafide. In my considered opinion this is a total misconception and misdirection since throughout the Plaint filed by the appellant before the trial there was no such claim of malicious prosecution but rather the plaintiff sued for false imprisonment. All said and done, I would consequently dismiss the appeal for being devoid of any merit. The appellant is condemned to costs. '<2/ 'Jk P-F-'KIHWELO u v v. ' *. U li / * .. j/20/02/2017 DGE .