NA TZHC Mwanza2

IN THE HIGH COURT Of TANZANIA IN THE DISTRICT REGISTRY " ATMWANZA HC CIVIL APPEAL NUMBER 23 Of 2017 {Arisi!Jg from Musoma District Court in Civil Case Number 11 of 2009 before H. S. Mushi RM) PATRICE KICHOMORI MAKANG'A •aoaaaa ■••·· APPELLANT VERSUS \ ALFRED SOROBEA MWITA ................. RESPONDENT -JUDGMENT 13.06.2017& 19.07.2017 Matupa, J. The appellant. sued the Defendant at the Court of The Resident Magistrate of Musoma for the tort of false imprisonment. In his claim as contained in the plaint, the appellant contended that the Respondent made incorrect. accusations to the police, •·. -; .accusing him· of certain crimes and that he was a trouble monger f 1 at the village and also that he banished him from the village. From the accusations, the appellant was apprehended and was incarcerated for a number of days in the police custody. He claimed from the respondent compensation of special and general damaged. amounting to shillings 43,679,000/ . The trial court dismissed the claim. The appellant has moved this court on appeal on the following grounds:- 1. Th~t t~e tr_ial '!'agistr~te erred both in law and facts by his failure to accord no (sic) weight in regarding to exhibit Pl and Exhibit P2. ·2. The court upon being satisfied that the plaintiff was detain~d, arrested and interrogated it ought to have found that the defendant as a village chairman on his personal capacity was the actual perpetrator of the alleged torts 3. That the trial magistrate erred in faulting the plaintiff's for his failure to call police witnesses 4. That the trial magistrate erred by .his failure to evaluate and scrutinize the whole evidence on the record 2 t I 5. That the whole decision of the trial magistrate was against the law The appellant did not have services of an advocate, he therefore fended for himself. The respondent was represented by Mr Philipa Hezron, learned advocate. The appellant impeached the trial magistrate for the failure to lend credence to the exhibits Pl and P2 which according to him, these were good evidence to show that he was indeed ·arrested and incarcerated in police custody. He contended that the respondent was indeed called to the police to explain why he gave false accusations ·against the appellant, but he did not respond to the summons. He lastly contended that he did not need to call the police to substantiate _ his c1aim of false incarceration because, if I understood him correctly; they are not legally compellable witnesses. And for this contention, he cited a decision of this court in Charles Heche Suguta and another versus 3 Nyamhanga Maher~· and two others Civil appeal number 51 of 1987 (Mwanza registry) (unreported). V In reply, the ·1earned counsel for the respondent submitted . that the exhibits were not addressed to the appellant but to the DC Musoma. The letters were written after the appellant was already arrested. The reporting to the police preceded the letters and that the police could not fail to compel his client to attend the police station had they wanted to. After all, the documents were not admitted in evidence, after the appellant failed to secure their 1---- - --=--------=- original copies. The issue before me is whether the appellant was indeed incarcerated for four days as he has contended, and whether the respondent was responsible for the incarceration in that he reported· the matter to the police. If I may start with the last issue, in his plaint, the appellants . has alleged as. follows. 4 4. On the 02/05/2006 the defendant maliciously and without reasonable or probable cause compile {sic} a false list and send {sic} the same to RPC Mara/ to the District commissioner Musoma {DC} and made oral statements to the Mara ·crimes officer as a result of which the plaintiff his arrest {sic} and kept for five days in the filthy police cells for investigation of crime. A false list formed the basis of the libel action. Refer to the defendant's letter with ref no NYK/PS/MSM/R/2006 dated 10/01/2006 addressed to the OCD-CID Musoma as proof of the said allegation. The original letter which have been in possession of the defendant {sic}. Marked_''A'~ __ 5. That on the 08/06/2006 in midnight.the plaintiff was arrest and search · in his house thorough/¥✓ nothing was found by the hounds of justice who were acting on . the strength of the repod published the defendan_t had made to them.to the effect that the plaintiff fo the offence of armed robbery gun refer police case file no MUS/RB/3487/2006 and threaten murder verbally for defendant; refer police case no · MUS/f!.B/3735/2006/ the register at Musoma police station indicated in this manner. Refer the defencfant's letter with ref no NYK/MK/MSM/2007 I i. I, 5 dated 07/02/2007. published to the District Commissioner Musoma - res ipso loquitur of the said allegation as annexture 'B"' ,3 Then in paragraph 6, ·the appellant made allegations that he was interrogated by the police officer under the RCO-Mara. That the police failed to get any evidence and he was released from custody on the 13th June, 2006. On the 15th June 2006 the police wrote. a letter to the respondent to summon him to the office of the RCO. He did not heed the summons, hence this action. . . - - - - ~ : :. -= __:_ -=--=-== From this disposition of the _clairp-_ the -triat: -court: framea the • - r - • - r 1. Whether on the 24/04/2006 the defendant falsely and maliciously and without reasonable and probable cause convened a village meetings and did inform the villagers he knew the prison involving in armed robbery sag?! and they verbally threatened to murder him. Whether on 02/05/2006 the defendant maliciously and without reasonable and probable .I I cause compiled a list of n~me_s and sent to RPC- Mara, _ DC Musoma, OCD- Musorraa, OCD-· Musoma, 6 DSO - Musoma and made oral statements to the RCO-Mara and caused the plaintiffs coast and being incarcerated for five days in the police cell. 2. If the 2 nd issue is decided in the affirmative, then whether defendant's report showed to be false and prompted with a view of victimizing theplaintiff 3. If the 3 rd issue is no decided, whether the plaintif character credit reputation have been exposed to the public contempt and scandal. 4. Whether the issue of discrimination , is a constitutional matter and therefor this court has no jurisdiction · _5. Reliefs,entitled· if any ==~ At the outset, let. me comment on one matter. The suit is rather confounded. The plaintiff was not sure if he wanted to proceed on defamation or false impr.i?onment. As a result of the confusion, he found himself mixing up different claims and reliefs; · and pleading facts on one head of claim which are irrelevant to the other. For example, on the claim for defamation, the app{:llant was required to pl_ead publication of the def?Jmatory 7 statements which were supposedly uttered and published by the defendant. And these were supposed to be specifically pleaded in the plaint. There were no such words which were the subject of the claim for defamation. This claim was therefore not made out; it was supposed to be dismissed outright. There was therefor no need to frame issues on this claim. In other words the 1st 3rd and 4th issues were misplaced on the pleadings. The remaining claim of false imprisonment was made out on the plaint. The issues are accordingly re-scoped in order to leave ~ ~ ___- _- - - out the claim for defamation, and remain with that_ of false ---- imprisonment. Accordingly, I will only deal with the 2nd and 5th issues .. ·Although in his claim, the plaintiff has contended that the report was made- by the way a list of persons which was presented to various leaders as shown in the plaint including the police and the District commissioner, . . there was no such list which ' 8 ; was exhibited in_ evidence. Nevertheless, in the present claim, as we shall endeavor to show in the course of reviewing the evidence, it was not denied by the respondent that indeed the reporting was made. The respondent's disposition of the evidence is rather incoherent. However, one can recollect from it the following flow of events. One, the reporting was first made to the police by a letter dated 19th March, 2006 in relation to the theft of a gun, serial number 354919, Mossberg, which had a license book ~=-- - bearing serial number 45644 belonging to one Wambura Kiguti. Following the reporting, an arrest was made in respect of one William Linus, presumably as a· result of, and in connection with the theft. The fate of his arrest is not known. All that he said is that the appellant absconded following ·-the arrest. On cross examination, the respondent gave an explanation that the RB number 3435 dated 8th June, 2006 was in relation to the report 9 which was made by the Village Executive officer. This person was not called to give evidence. v· Another piece of evidence in relation to the arrest can be found at page 29 of the typed proceedings where the matter comes out in relation· to the aborted TASAF meeting, where the appellant came to the scene and attacked the respondent with the following words: "Mwenyekiti unaendesha vikao vya kijinga, uliniweka ndani tarehe 8/6/2006. Uliniona" then I asked why he was insulting me while he had been arrested ~- ~ - against the events of the stolen gun, I insisted to him that the meeting was for the development of the village" This piece of evidence, coming from the_ respondent himself, is an admission that the report was made to the police but he distances himself to the report that led to the arrest. However, from the last piece of evidence, the claim by the appellant is therefor vindicated. _ 10 J I' k, I The appellant has complained in his 2nd ground of appeal that, once the trial court made a finding that in fact the appellant V was put under custody, he was duty bound to hold responsible, a person who caused the arrest. This complaint is not in accord with the law. This branch of the law has been a subject of exhaustive discussion. The appellant seems to mix this branch of the law and malicious prosecution. The tort of false imprisonment is divided into three areas. The first is where it is claimed :that the: : ::==::::::::~- defendant effected the arrest himself be it _by way of an unlawful confinement in a house or by restraint of movement. The second instance is where the arrest is· lawfully done at the instance of a legitimate complaint of the defendant and the third instance is whe~e the defendant . makes a complaint and indulges- an intermediary, to such as the hounds of justice to make an arrest, which transpires to b~ unlawful. Whereas the first arrest and. the 11 · third arrest are unlawful, the second arrest may not. The issue is whether this case falls under the third category. \3l • There is a thread of authorities to the above effect. One of the oldest authorities was the case of Aitken versus Bedwell (1927) 173 E.R 1084. In that case a captain of a ship directed that one of the members of his crew be taken onshore and should be subjected to severe punishment. In that case Lord Tenterden CJ stated the principle of the law in the following . -- . - - - - -- -- __- .... terms:- - "... The plaintiff contends that what was done on shore was the act of the captain, the defendant contends that it was the act of the Russians authorities only. The question for you is, whether the punishment inflicted·on the shore was done by the constituted authorities, on the mere complaint of the defendants, or whether the defendant was the actor and immediate promoter of it? if you think the defendant merely preferred his complaint and left the constituted authorities to act as they though fit✓. . . the defendant ls entitled to your verdict, if on the 12 other hand you think he did more and he was active in promoting and causing the punishment then he is answerable in this f'orm of action... " 1~1 \,..-7 In another case of ·Meering v. Graham white aviation Co Ltd (1920) 122 LT 44 Duke LJ delivered the following speech which I find to be very instructive. "... The cause of action which were alleged were two. The first was a claim of . damages for false imprisonment of the plaintiff by the officer of the · Metropolitan Police, acting at the instance and under the direction or at the request of the defendants and - ......... that was ~he _ground of- claim · in respect of false -~ - -_ ·.:-=--= - - imprisonment. To my mind, it is very signiffcant that there was no other grqund of claim. So far as the that matter of the alleged false imprisonment is concerned, it is necessary to consider whether the facts as they appear afford any proof·· of the allegation that the defendants requested or directed the officers of the Metropolitan police to -arrest the plaintiff,, The Police have specific duties and specific powers in the matters ·of arrest :for the purposes of . enforcement of the criminal law. In this case it was clear that the prosecution had been-instituted by the 13 defendants. It was not disputed.that the defendants left it to the police to do what they considered necessary. Nothing more than that was proved. As I think, in that state of the case, my view of the matter is that the arrest on the part of the police which follows the placing of the case in their hands to do their duty is not an arrest by a private person, and is an arrest by the police... " ( emphasis supplied). These authoritative statements were followed with approval, in the case of Davidson v. Chief Constable of North Wales and another (1994) 2 All ER 597. In a case where the -appellants, in a transactio·n which was honest and bona fides, purchased a ~=--·--_ - -cassette from a Woolworths store, and paid for it. A moment later, a· store detective who had observed them before and after . - the payment but did not leave the store at once, but a while later __ they crossed the street and sat down to drink some coffee, suspected them for having shop lifted the cassette. She accordingly reported them to the police 1 who arrested them. Although the evidence showed that the stor·e detective tqld- the 14 police that she was not 100% sure that they shop lifted, there was no evidence to that effect. In a suit for unlawful imprisonment, sir Thomas Bigham MR held stated as follows:- ".. .Accordingly, as it would seem to me, the question was arose for the decision for the learned judge was whether there was the information properly to be decided by the jury as to whether what Mrs. Yates did went beyond laying information before police officers for them to take such action as they thought fit and amounted to some direction, or direct request or direct encouragement that they should act by way of arresting these defendants. He decided that there - " was - no evidence "going beyond the mere giving . of information,, Certainly, there was no express request. CertainlY°f there was no encouragement. Certainly, there was no _discussion of any kind as to what action the police should take.... The facts remain ·that the learned judge to my mind quite correctly, held that what Mrs. Yates did and said in no way went beyond the mere giving of information, leaving to the officers to exercise a discretion which on their unchallenged evidence they did, as to whether they should take any action or not... " 15 Winfield and Jolowitz on Tort, nineteenth Edition provides a good illustration of the distinction on the liability for false imprisonment as he sums up the English cases I have decided. V "... A defendant can be liable for false imprisonment even though he did not personally detain the · claimant provided that he acted through an intermediary who exercised no independent discretion ... if for exan1ple A makes a charge against B before a magistrate and the magistrate then decides to order the arrest of B, A has set in motion not a ministerial but a judicial officer exercising a discretion of his own and A cannot be held for the fa!se imprisonment. In modein conditions it is very likely that where the police make an arrest on the basis of information or a coinplaint they will be held to be exercising an independent discretion. That is not so as for example where there is a request and encouragement to arrest on the information provided solely by the defendant.;." Here at home the subject has attracted judicial consideration in the case of Mods Sasawata v. Matias Malieko (1980) TLR 158 i.n a case where the appellant made a report to 16 the police that the respondent was responsible for the transportation of maize outside the Chunya District without a permit. The respondent was arrested as a result of the report and · V was incarcerated for one month until on the 10th August when he was released under then section 86(a) of the Criminal Procedure Code which left him liable to prosecution on the same facts. The issue was whether the respondent was arrested and if that was the case, whether the appellant was liable for the respondent's arrest. Mr Justice Samatta (as Jie then was) held at P. 161 as follows:- "... To succeed in a case of ·false imprisonment, a plaintiff does not have to satisfy the trial court that . . the restraint was unlawful. He does not shoulder that burden. It is ·tor the defendant to prove that the restraint was lawfula All the plaintiff has to demonstrate·· is that he vvas restrained by the defendant... " As can be seen),this decision _did_. not consider the elements of request and encouragement. -The decision proceeded from the 17 fact that. the respondent was in fact prosecuted and was discharged. It is therefore a borderline case between malicious prosecution and that of simple confinement as· a result of a report made to a police officer. From a judicial hunch, one could also look at the decision in light of the obtaining dispensation of the law. The procedure for bringing claims against the government and government officials was at the time excessively prohibitive. ·There was a scheme of the law which provided for unchecked excesses on the part of ======== government officials.·- That dispensation of the law has since been rectified, and - a new procedure for ensuring protection of individual rights has been put in place both· under the constitution ·and the procedure for prosecution. I believe that the approach in the English law provides a reasonable balance between the need for law enforcement and protection of the individual against arbitrary arrest and confinement. 18 In the Moris A Sasawala's Case, the judge seems to have proceeded on both, the rule on unlawful arrest and malicious v prosecution. At any rate with the enactment of the present Criminal Procedure Act cap 20 of the 2002 Revised Edition of the laws of Tanzania, which checks police powers to arrest and detain, giving them wide discretion to exercise the powers, the situation has tilted much to the English position as expounded above. Before a defendant is held responsible for arrest done by an intermediary who exercises discretion, there must be evidence that the defendant played an active role of request and e~couragement. I agree though, with the position by his rordship that the . . duty to rebut unlawfulness of the arrest is on the defendant. In this case the defendant has done so by showing that there was nothing more than the reporting. The claim by the appellant provided that after laying the claim, . the respondent was not incliri~d to go to the police to g_ive a statement. This averment 19 coming from the appellant, vindicates the position that indeed the respondent did not request or encourage the arrest. The appellant's contention that the mere fact that he was arrested V and was questioned by the police renders the respondent liable, is not bone out of the law. After all, the police summoned the respondent on 15th June, 2006 two days after the appellant had been released from custody after the appellant was already released from custody. This could not form the basis for the unlawfulness of the arrest in terms of request of encouragement. There is also cortespondence Exh.P2, which is a letter from the District commissioner. This letter shows that indeed, the respondent gave an order on the 19th June, 2017 ·banishing the appellant from the village. This letter is only relevant to show that there was a bad relationship between the parties. Of Pssence in the letter is the fact that, the banishment was not a result of the · said allegations of robbery.· 20 C• )he only reason for the purported banishment was that the appellant was not a Mkiroba, and that he should go back to his V village Bukabwa. The District commissioner had to intervene and directed that the appellant should remain at the village. I am invited to hold that these letters probably evidence request or encouragement to arrest. I don't find that this letter had anything to do with_ the report made to the police that led to the arrest of the appellant. The respondent has not suggested that he influencing the police after the report, as much as he does· not accept directly that he made the report. The appellant contends that there were RBs that would show that he was arrested on account of two complaints, one of robbery and another of threatening to injure the chairperson, it is not in eyidence when these were given out. There was no evidence to suggest so, as the RBs were not produced in .evidence. It is unsafe to hunch on what they may have contained. 21 In the present case, the onus laid on the part of the appellant to show that the RBs were issued in pursuance of the V complaint by the respondent. It has been suggested that he ·could not call the police to give evidence on the RBs because the police · are not obliged to give the evidence. The appellant has cited the case of Charles Heche Suguta and another versus Nyamhanga Mabera and others civil case number 51 of 1987 (HC) (Mwanza Registry) for that proposition. I have read the judgment myself I am afraid the appellant did not correctly apprehend the decision. -- ---- --- - ~ The- case which was referred to me was _in relation to deportation of suspected tattle rustlers. The procedure for compilation of the names of the suspects under the relevant law was secretive and was extra judicial, leading to the detention and deportation 9f the suspects. It was in the light of the foregoing background that his lordship · suspected that given the dispensation of the law then. oqtaining, the police could not be free to testify on the matters. The statement of his lordship in 22 that case was not therefore of general application, it has to be limited to the facts of that case. t j ~ The appellant has denied himself an opportunity to recover from the person who incarcerated him that is the police. This would have been easily achieved had they been made parties to the suit. In so doing evidence would have been supplied to the gaps in this case, which have not been filled. · From all what I have said, I am not persuaded that the respondent reported the appellant t9 the police and proceeded to - - - -· • - ~ - = -- ~ _encourage or request them to arrest the appellant. The police having received the complaint, they were at liberty to exercise their own independent discretion whether or not to carry out the arrest. Assuming for example the complaint was made in March ·· and the arrest was not made until ·the month of June, this was evidence good enough that the police· exercised that discretion. This was, I am -afraid if the la"'{ were to _constrain the public from 23 making reports of crime to the police and the hounds of justice, the work of law enforcement will be fettered. The foregoing . t) principles of English law which have evolved in this branch --- provide a good balance which is desirable and healthy for the better ·law enforcement. On this, the dilemma by the trial magistrate that the circumstances of this case demonstrated convenient exclusion of the arresting police officers has acted as a denial of the key link to justice, is borne out. I am also afraid that in this case, the trial court did not take - ... _ ___.......... ~ ........... - · - the liberty- to look at limitation. Had he done so, probably the · case would have been disposed of under the statute of limitation. ereby dismissed with costs. '"""' --, . . Matupa Judge 24