20050525 TZHC Dar es Salaam

.J IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO.154 OF 2004 MICHAEL RUTAHAKANA ................ APPELLANT VERSUS THE MANAGING DIRECTOR KEKO PHARMACEUTICAL INDUSTRIES (1997) LTD .......................................... RESPONDENT JUDGMENT SHANGWA, J. This appeal originates from the decision· of the court of the Resident Magistrate at Kisutu in Civil Case No.109 of 2002 in which the appellant's suit for malicious prosecution was dismissed with costs. Essentially, the appellant is saying that the said court erred in law in failing to evaluate the evidence on record and in holding that he suffered no damages as a result of his arrest, detention and prosecution. 2 The reliefs which mere being sought by the appellant in the Court below are general damages of shs.10,000,000/= plus interest on the said sum at Bank rate from the date of filing the suit until the date of judgment, and from the date of judgment until the date of full payment. On top of that, he sought for costs arising from the suit. The facts of this case are simple. These are as follows : The appellant was an employee of Keko Pharmaceutical Industries ( 1997) Ltd. He was working there as a Stores Officer. After being suspected that he had stolen some medicine from the store, he was reported to the Police by the Managing Director of the said Industries. On 12/2/2002, he was arrested by the Police at Chang'ombe Police Station and locked up for two days before he was released on Police bail. Before he was released on bail, his house was searched by the Police who seized some medicine and the plastics for keeping medicine which were identified to be the properties of his employer. ' , 3 J Later, he was taken to the District Court of Temeke and charged in Criminal Case No.116 of 2000 with stealing by clerks and servants c/s 271 of the Penal Code. He was jointly charged with three others. It was alleged by the prosecution that between January and February, 2000 being a person employed by Keko Pharmaceutical Industries (1997) Ltd as a Stores Officer, he stole medicine make paracetamol 50,000 tablets valued at shs.150,000/= the property of his employer. This case was reported in one of the local News Papers called Tanzania Leo dated February 18 - 21 of 2000 at page 3. On 9/4/2002, the prosecution entered a nolle prosequi under S.91 (1) of the Criminal Procedure Act, 1985 and the appellant was accordingly discharged. On 10/6/2002 he filed Civil Case No.109 of 2002 which as 1 have already said was dismissed with costs. The general question which has to be considered here is whether or not the trial Resident Magistrate erred in law in dismissing the appellant's suit for malicious prosecution. There is no dispute 4 that the appellant was arrested, detained and prosecuted for the offence of stealing by clerks and servants. There is no dispute also that he was arrested at the instance of the Managing Director of · ~ Keko Pharmaceutical Industries. There is no dispute as well that his Criminal Case was reported in one of the local News Papers. Furthermore, there is no dispute that he was discharged by the District Court of Temeke from the offence with which he was charged after entering a nolle prosequi under S.91 of the Criminal Procedure Act, 1985. What is in dispute is whether or not the appellant was maliciously prosecuted at the instance of the Managing Director of Keko Pharmaceutical Industries. There is evidence on the trial court 's record which was given by D.W.3 Kibo Marealle to show that some medicines which were produced from Keko Pharmaceutical Industries (1997) Ltd and which were unlawfully taken from there were seen being sold in a certain 5 shop at Temeke before the matter was reported to the Police for investigation. Also, there is evidence on the trial court's record given by Dw.2 C.660 Det. Sergt. Ndalo to show that 28,000 tablets of paracetamol produced at Keko Pharmaceutical Industries ( 1997) Ltd which had not officially been released to the market for sale were found in the shop belonging to one Yese Munisi and Ally Dogoli Paramba who were charged with the offence of receiving stolen property c/s 311 (1) of the Penal Code. Furthermore, evidence which was given by Dw.2 c.660 Det. Sergt. Ndalo is that when the appellant's house was searched by the Police, they found among other things twenty one plastics for keeping medicines which belonged to Keko Pharmaceutical Industries (1997) Ltd. t . , 6 In addition to that, there is evidence on record which Was given by Dwl Ben Moshi to show that the appellant was the in- charge of the Medical Stores at Keko Pharmaceutical Industries and that he used to keep the keys of those stores in which medicines used to be kept after being produced and before being released for sale. In view of all that much evidence on the trial court's record, I cannot say that the appellant was reported to the Police at Chang'ombe by the Managing Director of Keko Pharmaceutical Industries Maliciously or without probable and reasonable cause. I cannot as well say that he was maliciously prosecuted for answering the charge of stealing by clerks and servants c/s 271 of the Penal Code. The fact that he was discharged by the District court of Temeke Under S. 91 of the Criminal Procedure Act, 1985 after entering a nolle prosequi does not mean that he was reported to the Police without .. 7 probable and reasonable cause or maliciously prosecuted for the offence of stealing by clerks and servants. There are two reasons as to why he was reported to the Police, charged with the offence of stealing by Clerks and servants and prosecuted for the same. First, he was the custodian of the medicines which were found being sold in the shop after having been smuggled from the stores of whose keys were in his possession. Two, when his house was searched by the Police, he was found with several plastics for keeping medicines which had been smuggled from his employer's stores. It must be borne in mind that the discharge of an accused under S.91 of the Criminal Procedure Act, 1985 does not bar the prosecution to re-arrest him and prosecute him once again for the same offence. In my view, the learned trial Resident Magistrate was right in holding that the appellant had not maliciously been prosecuted and 8 that he was not entitled to general damages as claimed by him in the court below. For the reasons contained in this judgment, I hereby dismiss this appeal with costs. ~ A. Shangwa JUDGE 25/5/2005 Delivered in open Court in the presence of the appellant and Mr. Msuya for Mrs Msuya for the respondent. ~ A. Shangwa JUDGE 25/5/2005