20141106 TZHC iRINGA

... IN THE HIGH COURT OF TANZANIA AT IRINGA CIVIL CASE REVISION NO. 4 OF 2011 ' PAULO SIMON MNKANDE .................... :......... PLAINTIFF VERSUS 1. INSPECTOR GENERAL OF POLICE 2. THE ATTORNEY GENERAL - IRING A ........ DEFENDANT 3. THE OFFICER COMMANDING DISTRICT - NJOMBE . 27/10/2014 & 06/11/2014 JUDGEMENT P. F. KIHWELO, J. In this case the plaintiff, who lives and works in Makambako in 1:-Jjombe R.egion was on 12 th April, 2006 arrested by the police and '~ ~ then taken to Njombe Police Station where he was detained for six _consecutive days before he was taken to Mpechi Prison where he -· 'I- :\ spent twenty four (24) hours and was released on court bail the following day. 1 One week later after his release on court bail the plaintiff wa~ brought before the court and charged along with three others· for forgery in Criminal Ca:se No. 99 of 2006. On 25/06/2008 the . Plaintiff and other co-accused ,were .• •. -discharg~d under Section 225(5) of the Criminal Procedure Act.' The Plaintiff was aggrieved by his arrest . and prosecution in Criminal . Case No. 99 of 2006. He brought this action against the defendants, &· therefore, seeking the following reliefs; · (i) A declaration .that the defendants are vicariously liable for false imprisonment and malicious prosecution. (ii) . An order· for the defants., jointly and severally niake payment of the said general damages at the rate of TShs. 20,000,000/=. (iii) Costs of this suit. (iv) Any other relief this honourable court may deem just and equitable to grant. During the trial the plaintiff_ represented himself ~hile the • ~_'.,-..::-~._.:..:,•.:,_ 'j. :......'' defeqdants were represented by Mr .. Hangi Chang'a, learned t State Attorney. The Plaintiff had one witness and the defendants ' .as' well had one witness only. I .. T ,, The court formulated the following issues for determination: 1. Whether the plaintiff was maliciously prosecuted and forcefully imprisoned. 2. Whether Criminal Case No. 99 of 2006 before Njombe District Court was finally determined and judgement was pronounced in favour of the Plaintiff. 3. Whether the 3 rd defendant by arresting the plaintiff was discharging his duties, and · 4. Whether the plaintiff is entitled to general damages of Tshs. 20,000,000/=. Briefly the testimony of PW 1 Mr. Paul Simon Mnkande was that the officer from the third defendant's office arrested him at his residence under the orders of the third defendant and took him to ' . Nj(?mbe Police Station where he was put under custody for six days , before he was taken to Mpechi Prison for one night and the , following day a removal order was sent to Mpechi Prison and he was taken to court and released on bail upon his friend Alphonce Kayuni coming for his rescue as a surety. · " PW 1 testified further that he was later charged 1n Criminal Case No. 99 of 2006 but on 25/06/2008 they were all discharged. , He tendered before the court Exhibit Pl an order of Njombe District 3 Court which discharged the Plaintiff and other three co-accused under Section 225(5) of CPA. .. · PW 1 testified further that he claims TShs. 20 Million being costs related to the case and any other relief. On the other hand DW 1 ASP Hassan Okello testified that he i.s j aware of Exhibit Pl and remembers that the Plaintiff were charged with a criminal offence and later on discharged but in the event that t• "1, '• 't 1 the witne~s or further evidence is sought the plaintiff and his co~ accused may be charged in a fresh case. DWl noted also that the prosecution may as well wish not to continue with the prosecution., ' of the said case anymore. DW 1 further testified that the case against the Plaintiff was not instituted maliciously but. rather based upon _credible information that an offence of forgery was committed hence the Plaintiff was arrested as a suspe·ct. . . Finally DWI testified _that the Plaintiff was not entitled to any t .~ .• amount claimed as police · officers who arrested him :were discharging their duties upon receiving information that an of(~P.<;,e_ ·- r· f~ was committed and the plaintiff was a suspect. 4 '.· !' . . Now I turn to address the issues proposed and in so doing I am of the opinion that issue No .. 1 and 2 should be dealt together in view of the fact that in determining malicious prosecution automatically issue No. 2 will 1?e· considered. The first issue deals with the torts of malicious prosecution and false imprisonment ·which have been fully expounded by Kyando J. (as he then was) in the case of James Funke Gwagilo V. Attorney General [2001] TLR 455 citing Samatta J. (as he then was) in tl).e cases, respectively of Moris A. Sasawata V. Mathias Maleko [1980] TLR 158 and Hosia Lalata V. Gibson Mwasite [1980] TLR 154. In addressing the tw9 issues I will therefore start with malicious prosecution. It is trite law that for one to succeed in a suit for damages in a .tort of malicious prosecution one has to prove simultaneously that: \ (a) he was prosecuted; (b) that the proceedings complained of et;ded in his favour; (c) that the defendant instituted the prosecution maliciously; (d) that there was no reasonable and probable cause for such prosecution; and (e) that damage was occasioned to the Plaintiff. 5 .' f' .. Now starting with the first element, there is no dispute' that the Plaintiff was pro~ecuted in Criminal Case No. 99 of 2ooi. However the second element is disputed as there was no. final ! "~ • . - • ~ • . determination of the Criminal Case No. 99 of 2006 · hence the question of prosecution ending in favour of the plaintiff is non existence. This is also proved by . the plaint at paragraph 7 a~;..well . as Exhibit "P2". Since the Plaintiff has to prove all the elements simultaneously (see Jeremiah Kamama V. Bugoinala May~ndi . . [1983] TLR 123 then I don't wish to waste my energy, time .and paper addressing the other elements since one has to prove all the .. . ! . elements and not one of them or just few of thei:n. In. the circumstances I find that claim for malicious prosecution has f~ed. : ~ . ~ . .- As for false imprisonment. This 1s defined to niean the total •. unlawful restriction of a person's freedom of movement. It incl~des unlawful arrest. Black's Law Dictionary, ·9 th edition defi~es fals,e , " imprisonment to mean a restraint of. a person in a bonded . .:area . ' without justification or consent. It goes without saying that' ,:one ·:• must prove the following in· order to establish false imprisonment; 1. Restraint of the Plaintiff 2. The restraint must be unlawful 3. The act of restraint must be -done maliciously, and . ~ . -- - 4. The restraint must be against the plaintiffs will. 6 i· . \~•J'-, . ·.. . ;'.: ~'. ' ~··· ... . ... , ,., It must be noted that unlike malicious prosecution false · imprisonment is actionable perse, i.e without proof of actual damage. \ t ·There is no dispute that the plaintiff was arrested by the police in relation to forgery of birth certificate and that he was detained for six days before the police then taken to M pechi Prison before he : was,, released on bail. So imprisonment or restraint has been proved. ·:The question is was the arrest justified and hence lawful? Kyando .. ... ,., t J. (as he then was) in James Gwagilo (Supra) in answering the above question he pointed out that, this 1.s for the defence to establish for as it has been stated in Halsbury's Laws of England, Volume 38 (3 rd edition), page 765, paragraph 1266: The gist of ·false imprisonment is the mere imprisonment; the Plaintiff need not prove that the imprisonment was unlawful. or malicious, but establishes a prima facie case if he proves that he was imprisoned by the defend ant; the onus then lies on the defend ant ofproving justification. : In order for one to establish justification the question which has. to be addressed is, was there . a reasonable and probable cause in prosecuting the plaintiff in this case? 7 . .- This court in the case of Amina Mpimbi V. Ramadhani , Kiwe . [ 1990] TLR 6 had this to obs~rve quoting the case of Hernim~-~ ·v. . Smith (1938] AC 305: It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. · His duty · is not to ascertai,:i whether .• .: there is defence, but whether there is reasonable. and probable cause for prosecution. . In that case the House of Lords approved a definition of reasonable and probable cause, by Hawking J. in Hick V. Faulkner . . : ' (1878) 8 Q.B D 167, 171 as: An honest belief in the guilt of the act;used based on a full conviction, f 011:ncl,ed upon .reasonable grounds, of the existence of a state of circumsta'nces, which, ·assuming them to be true, would reaso_nably . l. . lead an ordinary prudent and cautious man, placed in the position of the ·accuser, to the condusioi1.Jhgt __ .__ ... '" the person charged was probably quilt of the offence imputed. l· ' 8 ; . I .. In his evidence, the plaintiff says very little, if anything at all, I about . his arrest and prosecution being without reasonable ,. pr •~t ·. ' - ' ·1 probable cause. Otherwise the defendant has indicated that the plaintiff was charged along with other co-accused. I therefore hold that there was reasonable and probable cause in the plaintiffs arrest and subsequent prosecution. Turning to whether the act of restraint was done maliciously, I ~ , compelled to refer to the settled principles. on how to establish malice in the tort of malicious prosecution. Kyando J. in the case of James Gwagilo (Supra) while citing Stevens V. Midland Countries Railway (1854) 10 EX 352 at page 356, Alderson B put thus; Any motive other than that of simply· instituting a prosecution for the purpose of bringing a person to justice, is malic,ious motive on the part of the p~rsq,;i who acts in that way. . In his evidence the plaintiff has failed to establish that his ' -arrest and subsequent prosecution by the police was actuated by malice. Malice exists in particular individual who either puts 1n 9 ------------------------------- -~----·-. ---- ·------ ---·· ---- - -~r - ----- _ _ _ _ - - ~ ____ _ ____ - ~ - - I _________ - - ~ - __ 1· . ' motion the investigation as complainant or a specific police- officer '. - who prosecute. It does not exists in inanimate bodies such as the police force generally. It would have done more justice if the plaintiff J . would have provided more particulars in the plaint to indicate .. ,· malice on the part of the . third· defendant and/or partjcular individual who bore malice towards him which actuated his arrest - and prosecution. Malice therefore has not been proved in this c8:se._ I have no doubt that the restraint of the plaintiff was agrunst his will but since the other two elements have not been proved I am· in no doubt that there was no fal·se imprisonment. This disposes of issue No. 1 and 2 of the suit. It is decided in the negative against the plaintiff. I pass now to· consider issue No. 3. There is no dispute·_·that the duty of the third· defendant is among other things to investigate crimes, rec.eive ·information and .arrest suspects. DW 1 testified· that they arrested the plaintiff and charged him along with other three accused persons and this was up_on receipt of complaint that an offence was committed, DW 1 testified further that in doing so the police were discharging their duties. Since the police acted hon·estly and on reasonable ground to arrest and prosecute the plaintiff~ firtd out that they were dully discharging their duties. t 10 I -} .~ ... .. , ,.~ . \ ;· This disposes issue No. ·3. It 1s decided 1n the affirmative against the plaintiff. . . Finally, turning to issue.No .. 4 since the claims in paragraphs . 5 and·s of the Plaint hinges on issue No. 1, 2 and 3 and because all the three issues have been determined against the _Plaintiff, those -claims fail too. , In the final analysis, having determined all the issues of the : ' ·;,case against the plaintiff, the suit fails and it is dismissed . .· Considering the circumstances of the case each party shall ·be·~ its own costs. P. F. KIHWELO JUDGE 06/11/2014 Right of appeal explained. 11 I - P.F. KIHWELO JUDGE 06/11/2014 ., ,. 12 .J