mohamed mussa himboko another vs alice kunnola 2009 tzhc 86 8 july 2009

IN THE HIGH COURT OF TANZANIA

AT MTWARA CROSS CIVIL APPEAL NO.12/2007 & 13/2007 ARISING FROM CIVIL CASE N0.10 OF 2007

AT MTWARA DISRICT COURT 1. MOHAMED MUSSA HIMBOKO 2. MWANAHAMISI HAMISI AMANI

VERSUS ALICE K U N N O L A .......................................... RESPONDENT Date of Last Order - 03/3/2009 Date of Judgment - 08/7/2009

JUDGMENT MIPAWA, J. These appeals videlis, Civil appeal no. 12 of 2007 between Mohamed Mussa Himboko and Mwanahamisi Hamisi Amani [who are appellants] versus Alice Kunnola [respondent] and Civil appeal no. 13 of 2007 between Alice Kunnola [appellant] versus Mohamedi Mussa and Mwanahamaisi Hamisi [Respondent] both originate from Civil case no.20 of 2007 before Mtwara Resident Magistrate Court (Ruhumbika SRM], The appeals have been consolidated it would appear that the parties in that case were in one way or another dissatisfied with the holding of the learned Senior Resident Magistrate and hence cropped the appeals before this court. 1 Therefore in order to comprehend what transpired in the lower court a brief account of facts is necessary. The-appellant Alice Kunnola a Technician working with Mtwara Mikindani Municipal council instituted a suit for wrongful confinement as against the Respondent s Mohamed Mussa Himboko and Mwanahamisi Hamisi Amani. She won the suit before the lower court and was granted the sum of Tsh.500,000/= as compensation for the damages suffered plus costs of the suit. It was contended in the trial by PW.1 Alice Kunnola [Plaintiff] was on 6/3/2007 at about 11.00 o’clock was followed by two police women at her place of work who told her that she was needed at police station she agreed and went with them to the central police station where she was

thoroughly interrogated on the incident which occurred on 24/2/2007 and whether she knew a women called Mwanahamisi the wife of the 1st respondent. However the plaintiff told the police women that she does not know Mwanahamisi neither had they met anywhere with the said Mwanahamisi. Upon further interrogation PW.1 was-told by the Police that she was involved in hiring a group of thugs who invaded Mwanahamisi [2nd respondent] and the wife of Mohamed Mussa [1st respondent] and injured her on mere reasons that the first respondent Mohamed has married the 2nd respondent Mwanahamisi instead of marrying her the plaintiff. The plaintiff admitted that the first Respondent was his fiancee a priori but their relationship had come to an end since the year 2004 and the plaintiff was now with one Hidano Amri as her new fiancee. 2 The plaintiff was further interrogated by another policeman called Issa who was given the same story by the plaintiff and added that it was the act of the first respondent of having many girls which caused the plaintiff to desert the first respondent. PW.1 was told by the Police who was interrogating her that the group of thugs said that they were sent or hired to injure the 2nd respondent and they did not steal anything. The plaintiff told the court that she was bailed out at Police and told to report on 9/3/2007 and that whenever they get anything she could be

summoned. Finally she was told that the police case file was closed but could be re-opened on the availability of evidence. The plaintiff averred that because she was not concerned with the matter she got psychological injuries and sad that one man had wanted to hire her group of thugs for his own ends it was when the plaintiff felt defamed the statements of Mwanahamisi Amani and Mohamed Mussa Himboko written at the Police Station in respect of the criminal charge for the investigation no. MT.RB 1058/2007 were tendered in court as exhibit. In their defences the defendants versions were as follows; the first defendant DW.1 Mohamed Mussa denied to have mentioned the plaintiff when he reported the incident of his wife DW.2 being assaulted he just reported at Police station and gave his statement. He alleged that on the fateful day he was on safari to Nachingwea and had left her wife at home. He was informed by Mobile Phone on the whole episode and hence returned back home. On her part DW.2 Mwanahamisi Hamisi told the court that on the material night while asleep, she heard footsteps outside the house and when she woke 3 up and proceeded to the door in order to test its security locks, she found that they were loosened and the door was open and suddenly she was pulled outside by a person who told her to give them some money she screamed for help and people or neighbours

responded and told DW.2 that they heard her screaming “Nakufa” then she was advised to report the matter to the police where she wrote her statement and alleged that she did not mention anybody. Now the appellants have jointly and together filed about four grounds of appeal videlis: 1. That the learned trial Magistrate erred in law and facts for reaching into decision without calling the key witnesses police who arrested the respondent [Alice Kunnola] to testify on the way they arrested him.

2. That the learned Magistrate erred in law and fact for ordering compensation in the case of malicious prosecution while respondent was not prosecuted.

3. That the learned trial Magistrate misdirected himself for ordering compensation while there is no evidence (sic) to show that the plaintiff was damaged.

4. That the learned trial magistrate grossly erred in law and fact by stating that the plaintiff was arrested. The truth is that the plaintiff was merely called for interrogation. I will start to deal with the first ground of appeal. The appellants in their joint written submission have submitted that determination of any suit is based on the facts adduced before the court however the 4 learned trial Magistrate made his judgment in favour of the plaintiff [R espondent]. establishing facts by mere implication against the Respondents [now appellants] while some of the issues were real intricating and involved the true interpretation of the causes so instituted and solid evidence to prove the same. Replying the Respondent in her written submission contended that, she instituted her claim before the trial court under reasonable ground because the appellants reported to Mtwara central police station that the Respondent was the one who sent thugs to the Appellants home who assaulted the 2nd appellant, the claim of the Respondent before the trial court was clear, claiming compensation under the breach of tort of false imprisonment and not malicious prosecution. The appellants on the first issue are challenging the decision reached, by the learned trial magistrate without calling the key witnesses who arrested the respondent and that the respondent really filed a suit on the tort of

false imprisonment and not that of malicious prosecution. I will deal with this disparity later on because it is clearly elaborated in the Respondent written submission and in the second ground of appeal of the appellants. I think by and large that the issue of respondent’s arrest is not in dispute in so far as the evidence on record is concerned. The claim by the Appellants that the police officers who arrested the respondent [Alice Kunnola] could have been called before the court to testify on the way they arrested the respondent is without any merit at all because the issue is whether or not the respondent was arrested and not how the respondent was arrested which it seems to me an empty bowel so to 5 speak. Even if the police could have appeared to testify the maniere in which they arrested her, still that could have not thwarted the fact that there was an arrest by the police done to the respondent. The fact that the arrest of the respondent was not in dispute I found that the first ground is devoid of any merit whatsoever. The fourth ground of the appellant which is more or less related to the first ground of appeal cannot be spared. In the fourth ground the appellants assets that the trial magistrate grossly erred in law and fact by stating that the plaintiff was arrested, the truth is that the plaintiff was merely called for interrogation. As I said supra that this

ground cannot be spared because it goes hand in hand with the first ground of appeal. The fact that the Respondent was followed by two policewomen at the office and later taken by them in their van was clear an arrest of a person, the question of interrogation was an act which followed the arrest and it was done at Police station. The fourth ground of appeal is nothing rather than a twisting of words the appellant wants to put. In fact as the Respondent told the court, in his evidence that the appellants by giving false information to the police that the respondent has a group of thugs whom can be hired and that it was the respondent group that was responsible for invading at the house of the appellants and injuring the 2nd appellant was a motion put by the appellants which culminated for her arrest by the police. I will now deal with the second ground of appeal by the appellants which states that the learned trial magistrate erred in law and fact for ordering compensation in a case of malicious prosecution which respondent was not prosecuted. Also at this juncture it is 6 important to deal with the ground(s) of appeal of the respondent in her cross appeal [civil appeal number 13 of 2007] particularly in her first and second grounds of appeal in which the respondent now appellant asserts that:- 1. The trial magistrate grossly misdirected himself in law and fact, in holding that I filed a suit of malicious prosecution while in fact the appellant filed her case on wrongful Confinement as a branch of tort cases.

2. That the trial magistrate misdirected himself in forming ingredients of the tort of malicious prosecution instead of wrongful confinement. In fact I should rightly here agree with the appellants in civil appeal no. 12/2007 that really the respondent was not prosecuted in a case of malicious prosecution. I have carefully read the judgm ent of the learned Resident Magistrate who rightly from the beginning of his judgment asserted that the plaintiff Alice d/o Kunnola brought an action against the first and second defendants, for malicious prosecution. Then having narrated the “evidence” in his judgment the learned Senior Resident Magistrate proceeded to lay the ingredients of the tort of malicious prosecution quoting with great determination and confidence the case of Jeremiah s/o Kamama v. Bugomola Mayandi [1983] TLR page 123 which laid down the ingredients thus: (i) for a suit for malicious prosecution to succeed the plaintiff must prove simultaneously that; (a) he was prosecuted (b)that the proceedings complained of ended in his favour 7 (c) that there was no reasonable and probable cause for such prosecution (d) that damage was occasioned to the plaintiff. The learned Senior Resident Magistrate then on his own way he understands the tort of malicious prosecution dealt with the “evidence” given at Police station and placing the ingredients of malicious prosecution to suit

the so called “evidence” in the legal process allegedly to have been set by the first and second appellants. Look at what the learned Senior Resident Magistrate said in his judgment; ...... Let me now come to the complicated issue as to whether the defendant instituted the prosecution without reasonable and probable cause ..... the cause of the lodging of th e . complaint and consequent arrest of the plaintiff is the incident of burglary done by unknown people at the home of the 1st and 2nd defendants .... there was no evidence at all or clue that she has any connection (plaintiff) with the group of thugs, the mere fact that they mentioned that they were sent by people to injure the 2nd defendant in itself cannot form good ground to suspect the plaintiff..... With great respect to the Senior Resident Magistrate, he failed to comprehend the difference between the tort of malicious prosecution. The records shows that in fact the respondent Alice Kunola had filed a plaint before the lower court in clear terms of the words in the plaint showing that the suit was not of malicious prosecution as the learned Magistrate had diverted it, but it was the suit of false imprisonment in 8 paragraph five of the plaint in the lower court the plaintiff Alice Kunnola asserted that; 4: That the 1st and 2nd defendant .... Acted falsely and maliciously and without reasonable suspicious, informed

the police station that the plaintiff arranged the group of thugs who assailed the 2nd defendant on 24th 02, 2007 in Saturday night. 5: that following that false information by the defendants the police officers acted upon such false information and on 6/3/2007 in Tuesday the plaintiff was arrested by Police officers and detained at the police station. So this act constitute false imprisonment as plaintiffs liberty was restrained [emphasis added]. As there is clear and unambiguous record that the plaintiff filed a tort of false imprisonment before the lower court as she clearly narrates in her ground of appeal [cross appeal] civil case appeal no.13/2007. It was therefore wrong for the learned Senior Resident Magistrate to proceed with the tort of malicious prosecution. Had the learned Senior Resident magistrate comprehended what is a tort of malicious prosecution and false imprisonment he could not have dumped himself into the quaqmire of “pollution of legal professionalism” I would say. To my mind even undergraduate students at the University in a moot court could not have swayed and dumped themselves in such a great error as did the learned Senior Resident Magistrate. Infact the learned Magistrate ought to here clearly 9 understood the following that it is trite law in malicious prosecution .... 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 he 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 if the law .... [Wiffer v. Bailey [1985] I K.B 600] The learned Senior Resident Magistrate could have understood that prosecution per excellence was not had before a person clothed in judicial authority and thence an action of false imprisonment was proper rather than malicious prosecution which in my view the learned magistrate did not have had before him any evidence to prove the ingredients of malicious prosecution. The evidence which was*had relates to the arrest and confinement of the plaintiff [Alice] at Police station. Therefore I entirely agree with the appellant Alice Kunola in Civil Case Appeal No. 13/2007 has merits in so far as false imprisonment is concerned down from when she filed the plaint on false imprisonment and the facts which led to the tort. It is the procedure in civil matters that issues of any case are drawn from the pleadings filed in court. However the Senior Resident Magistrate coined the

issues not basing on the pleadings and 10 proceeded to decide the case on the basis of a tort of malicious prosecution which was by and large not pleaded in the plaint by the plaintiff. In their rejoinder the appellants have jointly submitted that the learned Magistrate was. wrong to award compensation on malicious prosecution which is not found in the plaintiffs pleadings. They quoted the case of Bilay vs Polland and Morris an English case found in [1930] I K.B 682. If I may be excused to quote from their joint rejoinder submitted in writing, thus: ..... Cases must be decided on the issues on record and if it is desired to raise other issues they must be placed the record by amendment. In the present case the issue on which the judge decided was raised by himself without amending the pleadings and in my opinion he was not entitled to take such a ca u se .... In the case before the lower court it is also my settled view as Ihave already said that the learned trial Magistrate embarked onissues of his own thought which were not delived from the pleadings, that was a great error. For example when the Senior Resident Magistrate decided that the proceedings had ended in favour of the plaintiff. It was a misdirection because there were no proceedings which ended in favour of the plaintiff in that case in far as the term institute of prosecution is concerned and if at all there was

any prosecution instituted in the circumstances. In my opinion what transpired at Police station after the defendants had reported was police interrogation of the plaintiff [Alice Kunnola] then police investigation and later on the closure of the police case file where the plaintiff was told that it could be re-opened in case any evidence is found in the 11 future. To the minds of the learned Senior Resident Magistrate that was what he called termination of the proceedings in favour of the plaintiff with respect that was wrong and a clear misdirection. I think rightly that the learned Resident Magistrate did not actually consider the plaint of the appellant/respondent Alice Kunnola. A cursory glance of the plaint reveals, as I have said earlier that the pleadings were directed to the offence of false imprisonment and not that of malicious prosecution. A crucial excerpt from the plaint in the lower court reads; ( 5 ) ..... that following that false information, the police officers acted upon such false information and on 6/3/2007 in Tuesday (sic) the plaintiff was arrested by Police officers and detained at the police station. So this act constitute false imprisonment as plaintiffs liberty was restrained.... It is pertinent clear that the learned Resident Magistrate erred in formulating issue for malicious prosecution whilst the plaint '[pleadings] show in clear terms that the

wrong [tort] pleaded is that of false imprisonment. I entirely and respectfully agree with the appellant Alice Kunnola cross appeal no. 13/2007 that the trial magistrate grossly misdirected himself in law and fact in holding that she filed a suit on malicious prosecution, while in fact she [appellant] had filed a case on wrongful confinement. The compensation of 500,000/= should therefore have been the compensation for damages suffered on wrongful confinement of the plaintiff appellant. 12 Although the appellant has challenged the decision of the learned magistrate who lowered the amount claimed from 5,000,000/= to 500,000/= allegedly because [as the appellant asserts] the trial magistrate did not give reasons. I think by and large that the learned' Magistrate gave reasons for that as indicates in the judgment when the learned Resident Magistrate said like this; .... The act of being arrested at her place of work, obviously must have damaged her fame, because the matter she is alleged to have done is a criminal case which is scandalous and when arrested.... She was put in police custody for a short while and was released immediately after interrogation yet at that particular time the plaintiff had her liberty lost.... There was however no damage to the plaintiff’s property worth talking about here because the plaintiff was not taken to court where she would have incurred a

number of expenses..... • The above excerpt from the judgment of the learned Magistrate in totidem verbis sparks the reasons reached for lowering the amount from 5,000,000/= to 500,000/= and I think he. was justified and I consequently find no reasons to disturb the among of 500,000/= given to the plaintiff [appellant] as compensation. Therefore the Respondents in civil appeal no.13/2007 who are Mohamed Mussa and Mwanahamisi Hamisi should pay the compensation of 500,000/= for false imprisonment/wrongful confinement. On the other side of the coin for the reasons I have given earlier supra in this judgm ent the appellants in civil appeal no.12 of 2007 who are Mohamed Mussa Himboko and Mwanahamisi Hamisi Amani 13 have lost their appeal by ninety five percent over hundred 95/100 and their appeal in dismissed therefore. Judge 8/7/2009 Further rights of appeal explained. I . S . IVIipcJVVa Judge 8/7/2009 Date: 29/5/2009 Coram: Hon. I.S. Mipawa, J. Appellants: Mohamed Mussa - Present Respondent: Absent B/C: Z. Rajabu, RMA Order: Judgment to be delivered on 30/6/2009 parties to be notified. I. S . ,v„K « , v « Judge 29/5/2009 14