MURSHID

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA-SUB REGISTRY)

AT BUKOBA CIVIL APPEAL NO. 13930 OF 2024 (Arising from Civil Case No.10 of2023 of the Resident Magistrates' Court of Bukoba, IN. Yona,SRM) MURSHID ABDUL...................................................... APPELLANT

VERSUS AHMED YUSUPH.................................................... RESPONDENT

JUDGMENT 7th & 29th October 2024 KIWONDE, J. The appellant, Murshid Abdul, being dissatisfied with the decision of the trial court, has preferred an appeal to this court based on four (4) grounds of appeal which are: i. That the trial court erred to decide the case against the appellant without proving the elements or ingredients of false imprisonment by the respondent. ii. That the learned Magistrate of the trial court erred in law and fact in holding against the appellant while the appellant had i proved his case against the respondent at the standard required by law. iii. That the learned Magistrate of the trial court erred in law and fact in holding against the appellant while the respondent failed to prove the loss incurred. iv. That the trial court being notified that the suit had an element of land dispute, it was wrong to proceed with hearing and determine the case without jurisdiction over land matters. The appellant prayed the appeal be allowed with cost and the judgment of trial court be quashed and set aside. During hearing of the appeal, the appellant was represented by Mr. Abel Rugambwa, learned counsel while, the respondent appeared in person. The counsel for the appellant abandoned the second ground of appeal and argued the rest. In support of the first ground of appeal, the learned counsel said the ingredients of false imprisonment were not proved. He said in

Theresia Isaya Versus Agness Adolph case, there are six (6) elements of false imprisonment, and in the fourth one, the restraint must have been unlawful and without any probable cause. 2 He argued that the appellant reported to police station and the police officer arrested the respondent. The counsel submitted that there was reasonable cause. Apart from that, the counsel argued that even if the respondent was acquitted of stealing in criminal case at Bukoba Urban Primary court, but it was decided that he involved in the loss of the appellant's properties which were in the hands of the respondent. As to the third ground of appeal, the counsel for the appellant said the trial court awarded the respondent the relief of compensation at the tune of TZS 15, 000, 000/= general damages without proof of economic loss. Finally, in the fourth ground of appeal, the counsel submitted that the trial court had no jurisdiction to entertain the matter which had the elements of land dispute. In reply, the respondent asked this court to adopt his reply to the memorandum of appeal in lieu of oral submissions. There were no rejoinder submissions. From the subordinate court records and oral submissions, the main issue for determination is whether the appeal is meritorious. 3 I have opted to begin with the fourth ground of appeal that the trial court lacked jurisdiction on reason that the suit had

an element of land dispute. But the respondent preferred the suit where the cause of action was based on the tort of false imprisonment. Though the essence of the arrest and detention of the respondent started from the misunderstandings as to the landed property, yet, the respondent did not sue on land dispute but on the tortious action. Therefore, the trial court was clothed with jurisdiction to hear and determine the suit. The fourth ground of appeal lacks merits and it is dismissed. Reverting to the first ground of appeal, in Amina Mpimbi V. Ramadhani Kiwe [1990] T. L. R 6, it is shown that in order to succeed in the suit based on tort of false imprisonment, the plaintiff has to lead evidence to prove that; one, the plaintiff was actually completely deprived of his liberty whether for a short or long time, two, that the restraint was without reasonable or probable cause, three, the restraint was actuated by malice on the part of the defendant and four, that the restraint was without the consent of the plaintiff. In the appeal at hand, it is not in dispute that the respondent was arrested and restrained at Kemondo police station then later on he was sent to 4 Bukoba Central police station. He stayed there until when he was bailed out. However, such arrest and restraint by police was based on the report of the appellant that the respondent and the other had stolen

his properties such as 40 cement bags, 30 iron bars and others. So, it is obvious that the act of the appellant reporting theft to the police station was based on reasonable and probable cause. In Rudolf Chavula V. Athumani [1982] T. L. R 100, it was stated inter alia that the informer who leads to the arrest and restraint of the person by police will not be liable for a tort of false imprisonment if the evidence shows that he acted with probable or reasonable suspicion that the offence had been committed and that at the time he reported to police, he was not motivated by malice. For that matter, the tort of false imprisonment was not proved at the trial. The trial tribunal was not justified to hold that the appellant acted without reasonable or probable cause. Also, just to add to that, it is apparent that the respondent merely alleged economic loss due to his drop down of his business activities. But this was not proved by evidence. Thus, even if it would have been proved that the respondent was falsely imprisoned, the award of compensation of TZS 5 15,000,000/= was not justifiable in the absence of evidence to prove the said economic loss. Eventually, the appeal is partly allowed. The trial courts' judgment is quashed and the decree is set aside. Each party to bear own cost. Dated at Bukoba this 29th October 2024. 1 F. H. KIWONDE

JUDGE 29/10/2024 Court: Judgment is delivered in chamber in the presence of Mr. Abel Rugambwa, counsel for the appellant, the respondent in person and Grace Mutoka (RMA) this 29th October 2024 and the right of further appeal is explained. F. H. KIWONDE

JUDGE 29/10/2024 6