20161227 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 127 OF 2012 MOHAMED SAID KATOTO ............................................ PLAINTIFF VERSUS MMI STEEL INDUSTRY LIMITED ................................ DEFENDANT JUDGMENT MKASIMONGWA, J This is a suit by Mohamed Said Katoto (Plaintiff) against MMI Steel Industry Limited (Defendant). The Plaintiff claims against the Defendant for payment of 500,000,000/= as general damages for false imprisonment and malicious prosecution. Together with that sum the plaintiff prays for interest at 12% court ratio on the principal sum from the date of judgment to full payment and for costs. The defendant disputed to the claim and from the pleadings the following issues for determination were framed. 1. Whether at the instance of the Defendant the plaintiff was maliciously prosecuted vide Criminal Case No. 503 of 2010 of the Resident Magistrate's Court of Dar es Salaam at Kinondoni. · 2. Whether as a result of such prosecution the plaintiff had suffered damages. 3. What relief(s) the parties are entitled to. In order to establish the plaintiff's case two witnesses came and testified. The witnesses are Mohamed Said Katoto (PWl) and Richard Paul Minja (PW2). In short the plaintiff's case is as that PW2 is a businessman dealing with spare parts. He has a shop situated at Mwenge, Dar es Salaam to which PWl was a keeper. On 3/4/2010 while was in the shop working PWl was approached by four people. Two of the four people were workers employed by the MMI Steel Industry Ltd (Defendant) and the other two were police officers. The people said that they were suspecting there were in the shop properties which got lost from the Defendant Company. They therefore wanted to 1 search into the shop. PWl told them that he was a mere shop keeper and its owner one Richard Paul Minja was sick at his home. The police officers stated that them being officers of the police force, they have the right to search into the shop. Without having a search warrant and without inviting an independent witness to witness the search, the police officers searched into the shop and seized therefrom various properties purporting them to be properties of the defendant company alleged to have been missing from it. The properties seized were those listed in the certificate of seizure which PWl produced in court as Exhibit. The same case admitted in evidence and marked as Exhibit Pl. With the seized properties PWl was taken to the police station where he was locked in the police lock up till 21/4/2010 when he was taken to Kinondoni Resident Magistrate's Court where he was charged with thelt vide Criminal Case No. 503 of 2010 of the court. PWl tendered in court as Exhibits both the charge sheet and court proceedings which were admitted in evidence marked as Exhibit P2 and P3 respectively. The plaintiff was remanded in custody until 27/4/2010 when he was bailed out. In evidence PW2 also told the court that as 4 - 5/4/2010 it was an Easter Holiday on 6/4/2010, he went to the defendant company/industry where he introduced himself to be the owner of all the properties the industry and the police had seized from his shop which were 25 iron plates, 4 iron scissors (Mikasi). Six iron poles (Majukwaa) and 190 jacks. He demanded for restoration of the items and the defendant industry contended that they were prepared to return only 15 plates which PW2 denied to agree with. The industry officials called police officers who arrested and took him to the police station where his statement was recorded. He was released and ordered to report to the police station on the following day as the complainant was not showing interest in the matter for he had instructed his security officer not to record his statement at the police station. PW2 also told the police officer and this court that the plaintiff was a mere shop keeper. He pleaded the police to let him free because all the properties belonged to the witness (PW2). The plea however reached a deaf ear and the plaintiff was charged in court. The charges where dismissed and upon claiming back for his properties PW2 too was charged in court vide a Criminal Case No. 1254 of 2010 which 2 again ended in his favour. Since he was a mere shop keeper with no any share to the shop the plaintiff contended that he was innocently arrested, incarcerated in the police lock up and then in remand prison. From this he has developed an unknown sickness; he is not employable as he is now being regarded unfaithful by this public. As such he has suffered damages from which he prays the court for the sum of Tshs. 500,000,000/= being compensation for general damage. On the other hand the Defendant had two witnesses to call. They are Lazaro Matulu (DWl) and John Ernest Nyachiel (DW2). In short the defence case is as that DWl and DW2 are retired TPDF and police force officers. DWl now works as the chief security officer employed by the Defendant. By 3/4/2010 DW2 was still an officer of the police stationed at Mwenge police post. According to DWl on 3/4/2010 there were stolen from the Defendant industry 15 iron sheets (plates) of 6mm thickness, 4 feet width and 6 feet length, eight stands and 190 jacks. In their investigation they detected that the goods were taken into a certain shop situated at Mwenge. They reported this to the police and later DWl and DWl came to the shop where they met the plaintiff as its keeper. They searched into the shop and seized various properties as listed in Exhibit Pl, which DW2 admit to have prepared it. With the properties the plaintiff was taken to the police station where he was charged. DW2 knew one Richard Minja as the later came to the police station and identified himself as being the owner of the shop from which the items alleged to have been stolen from the defendant company were seized. That Richard Minja was again arrested and charged in court. DW2 contended it is the police that prosecuted the plaintiff on behalf of the Republic. That is the whole evidence in this matter. Parties were ordered to file their final written submission and they duly complied with the order. Upon considering the evidence, I find it is not disputed that the plaintiff was a shop keeper employed and worked in the shop owned by one Richard Minja which is situated at Mwenge area of Dar es Salaam. It is also not disputed that on 3/4/2010 the plaintiff was at his work place when he was visited by two police officers and two staff of the defendant company, among whom were DWl and DW2. These conducted a search in the shop looking for items alleged to have been stolen from the Defendant Company. They did 3 that the plaintiff had explained himself to them that he was a mere shop keeper and that the shop owner one Richard Minja was sick at his home. In the search, various properties, as listed on the certificate of seizure (Exhibit Pl) were seized. The properties were then to the police station along with the shop keeper. At the police station, the shop keeper (plaintiff) was put in the police lock up until on 21/4/2010 when he was taken to the court charged with an offence. This fact is evidenced by the charge sheet (Exhibit P2) which shows that the plaintiff was charged in court with theft in the charge admitted in court on 21/4/2010. The charges were dismissed under the provisions of section 255 (4) of the dismissed under provisions of the Criminal Procedure Act on 16/8/2010. As it was hold in the case of leremia Kamama vs Bugomola Mayandi (1983) TLR 123, for a suit for malicious prosecution to succeed the plaintiff and must prove simultaneously that:- (a) He was prosecuted (b) The proceedings complained of ended in his favour. (c) The Defendant instituted the prosecution maliciously (d) There was no reasonable and probable cause for such prosecution and (e) Damage was occasioned to the plaintiff In the case it was also held that for purposes of malicious prosecution, a person becomes a prosecutor when he takes steps with a view to setting in motion legal processes for eventual prosecution of the plaintiff and that malice exists where the prosecution is activated by spite or under ill-will or direct or improper motives. Prosecutors who bring criminal charges against a person without having adequate justification may be civilaly of liable for doing so. Malicious prosecution is all about criminal case that is filed without an adequate basis and from an improper goal such as harassing the defendant, ruining one's reputation etc. where such a case is terminated by an order dismissing the charges the accused can sue for malicious prosecution and seek for financial order. As shown above there is no dispute that the plaintiff was prosecuted and the charges against him were dismissed under section 225 (4) of the Criminal Procedure Act (CPA). The prosecution was initiated by the Defendant. Before discussing dismissal of a 4 criminal matter under section 225 (4) of CPA let me deal with the question whether there was a probable cause for the prosecution. In order to file charges against a citizen and pursue a criminal case the prosecution must have enough evidence to establish a probable cause to believe the accused committed the alleged crime. The prosecution does not need enough evidence to prove the crime beyond a reasonable · doubt, but must reasonably believe that the accused is guilty. In our case the accused/plaintiff was a shop keeper in which the alleged stolen goods were met. According to the evidence the shop belongs to Richard Minja and this is clearly shown by Exhibit Pl part of which reads as follows in Kiswahili. "upekuzi hala/i umefanyika leo tarehe 3/4/2010 saa 15:30 katika makontena ya Richard Minja'~ The accused/plaintiff did not own the shop and had therefore no absolute control of the properties therein. This has been also shown by Richard Minja (PW2) who went to the complainant on 6/4/2010 claiming the seized properties to be his. PW2 also stated the same on the same date before the police at the police station and added that PWl was a mere shop keeper. Despite this statement made by PW2 to both the Defendant and the Police the Defendant did not think of withdrawing his complaint against the plaintiff. The later instead was left in the police lock up for 18 days before he was taken to the court on 21/4/2010. I agree with Mr. Mayenga, the learned counsel for the Defendant that the defendant, under section 7 of the CPA was duty bound to . report the intention to commit an offence or the commission of an offence under the Penal Code of which he is aware. The offence alleged is that of theft. Clearly there was no direct evidence that implicated the Plaintiff. The later was charged with the offence on being found, as a shop keeper, in the shop the goods were seized from. I think the idea was to apply the doctrine of recent possession whose one of its tests is the control the possessor has own the goods found in his possession. In this case, the plaintiff had no control over the goods. They were under the control of PW2. The later brought that fact to the attention of the defendant and the police 15 days before the plaintiff was taken to the court charged with the offence. Yet the prosecution, (according to Jeremia case {supra) includes the complainants here the defendant) decided to keep on 5 prosecuting the plaintiff. With due respect I find no any evidence would have moved the prosecution reasonably believe that the accused (plaintiff) is guilty. I am of firm view on the above analysis that the defendant had no probable cause to believe the accused/plaintiff had committed the crime. The plaintiff, an accused in Criminal Case No. 503 of 2010 of the Resident Magistrates Court of Dar es Salaam at Kinondoni, was discharged under section 225 (4) (5) of the CPA. According to the section the discharge did not operate as a bar to a subsequent charge being brought against him for the same offence. According Mr. Mayenga who got support of our decision in this case of Peter Joshua Kitobo vs. John Godson Mtui Civ. App. No. 66 of 2006, the fact that the criminal proceedings were ended by an order discharging the accused person does not mean that those proceedings ended in his favour. The court there held that: "The truth is that the respondent was discharged before the case was heard and determined on merit. It is common knowledge that the discharge of accused under section 98 (a) of the Criminal Procedure Act is not a bar to further prosecution of the same accused in respect of the same fact. " Thus I think is a good law to be limited in the circumstances that fall squarely with those in that case. In that case, the prosecutor did seek to withdraw the matter which is not the case in this matter. In the case at hand the court found under section 225 (4) of the CPA to be unlawful to grant adjournment and since there was no certificate filed in terms of section 225 (4) of the Act, the court was to proceed with the case but, the prosecution was unable to proceed with the hearing. It is when the court discharged the accused person. I understand our stand in the cited case, was due to the fact that the discharged accused person can be re-charged in court and that is why, the safe side to hold in the case of malicious prosecution is that the case was not terminated in favour of the accused. I understand also the fact that there is no time limit for institution of criminal charges. However on the evidence adduced in this suit it is clear that the following discharge of the plaintiff from the criminal charges complaint (Defendant) and the Republic (Police) set and reviewed the matter and found it being 6 not lawful to charge the plaintiff again. Instead they sought to charge and actually charged in court one Richard Minja as it is evidenced by Exhibit Dl. This in my view was due to the fact that the prosecution found no basis for prosecuting the plaintiff again based on the same facts. Where an accused person who has been prosecuted without any probable cause is discharged by the court not moved by the prosecutor to withdraw the charges and that discharge is not a bar for instituting a subsequent charge against him, and the prosecution upon re-thinking of the matter decides not to charge that a person with the offence and instead charges another person on the same facts, for purposes of malicious prosecution the discharge amounts to termination of the criminal proceedings in favour of the accused person. I will therefore hold that the proceedings in the criminal case the plaintiff was facing in court were terminated in favour of the plaintiff. As such I will respond to the first issue for determination, that is whether the plaintiff was maliciously prosecuted at the instance of the Defendant in Criminal Case No. 503 of 2010 at Kinondoni Resident Court in the affirmative. As to whether as the result of the prosecution the plaintiff suffered damages the plaintiff told the court in evidence that he was left in police lockup for about 18 days before he was brought to the court charged with an offence. This period is far beyond that provided for the law. The plaintiff also suffered psychologically for people find him not trustful. He is no longer employable. Given the fact that the accused/plaintiff was arrested and stayed in police lock up for 18 days and then reminded in prison, he certainly, has generally suffered and is entitled therefore to general damages. As to the reliefs, the plaintiff claims for a sum of Tshs. 500,000,000/. I have considered the fact that he is a STD VII school leaver, as he had told the court upon being cross examined by it court for the Defendant. He was working at Mwenge area of Dar es Salaam. It is not shown that he is competent for employment but, he is not employed only because he was sometime implicated of the theft. The amount to be awarded depends on the extents of the damages suffered. In this case the plaintiff has not justified why the amount of Tshs. 500,000,000/ should be awarded. Upon considering the matter, I find the plaintiff is entitled to the following reliefs. 1. Payment of Tshs. 50,000,000/= as general damages 7 2. 7% per annum interest on the Tshs. 50,000,000/= decreed, from the date of judgment to the date of full payment 3. Costs of the suit Dated at Dar es Salaam this 2ih day of December, 2016. E.J.~a· JUDGE 27/12/2016 8 Date: 27/12/2016 Coram: Mkasimongwa, J Parties: Absent Court: The parties are absent. Notices of date of judgment were issued to them. The matter is coming for judgment. Judgment is hereby deemed to have been read. Order: Parties to be supplied with the copies of the judgment. C E. J. -" t--,~ asimo gwa JUDGE 27/12/2016 9