said chomba baruhani vs mobisol 2023 tzhc 21232 21 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA CIVIL APPEAL NO. 15 OF 2022 (Original Civil Case No, 10 of2021 at Mpanda District Court) SAID CHOMBA BARUHANI.......... ............................ APPELLANT

VERSUS MOBISOL ........... ..... ............... .............. ..A..RESPONDENT JUDGMENT 'Wf' MWENEMPAZI J. 'W The appellant is aggrieved by both City'S. judgment and order of the District Court of Mpanda in Civil Case No. 10 of 2021, he has thus filed an appeal raising the following grounds: - l ' 1. That the trial Court erred at law by giving two differing judgments on the same case.

2. That the trial Court erred at law by disregarding hence not working upon its judgment delivered by Mpanda Urban Primary Court in Criminal Case No. 350 of 2021 which was not appealed against and which was part of the appellant's evidence in which the appellant was found not guilty of the offence of property destruction hence i proving that the appellant was erroneously and illegally restrained and prosecuted.

3. That the trial Court having found that the appellant was restrained without any reasonable cause, it erred at law and fact by its failure to give judgment in the appellant's favour. In reliance to the grounds raised, the appellant has prayed that the appeal be allowed and the respondent be ordered to: pay the appellantTshs. 60,000,000/= (shillings sixty million only) for the agony and.sufferings the w appellant has to endure, and costs of the appeal.. The record of the trial Court show the appellant filed a suit against the respondent for the same reliefs mentioned herein above. The main complaint being that the respondent based on the contract they had with the appellant she supplied the appellant with solar power system on hire V. ■-. ;- • i ; V* • > r 1/; >;'• s ■ •V-;. '.i ■ vfy: • purchase contract. While the contract was still subsisting the respondent's servant, accompanying The police stormed into his business premises, without justifiable cause and contrary to the law arrested the appellant and his brother, harassed and handcuffed him, paraded him at Mpanda Police Station where the appellant was remanded and placed in total confinement. Later a Criminal Case No. 350 of 2021 was instituted against him at Mpanda Urban Primary Court for the offence of malicious damage to property contrary to section 326(1) of the Penal Code, [Cap 16 R.E 2 2019]. The prosecution failed

to prove the offence beyond reasonable doubt which necessarily the case was concluded by dismissing the charges against the appellant. Based on the background the appellant came up With civil suit for compensation. The trial Court found the claims unmerited and dismissed the claims with no order as to costs. At the hearing of this appeal, the appellant appeared in person and the respondent was being served by Ms. Tunu Mahundi, learned advocate. Since the appellant was unrepresented he sought leave of this Court to proceed by way of written submission. The Court granted the prayers ’ > \ j ? •' •J?j •. ' C- f.>'r ? and the parties did comply with the scheduling order i’ b>., . In the submission by the appellant commenced with the first ground of appeal where he alleged the trial Court Magistrate delivered two judgments. The appellant opines that it is an irregularity, thus he calls upon this Court to condemn the act as being fatal. In his clarification the appellant has pointed out that the trial magistrate delivered two judgments with different contents on the same date. His call upon this Court has been supported by citing the case of Katisla Kayawe Versus Robert Kalapa, Civil Revision No. 1 of 2021 High Court of Tanzania at Sumbawanga (unreported). In this case, my learned brother Ndunguru, J. held that: 3 "It is high irregular for the Court to produce two judgments in

respect of one matter as it was done in matrimonial appeal No. 1 of2021 of The District Court ofNkasi" The appellant, also cited the case of The Registered Trustees of Chama cha Mapinduzi and Another Vs. Paskazia Rwebogoa and Another, Land Appeal Case No. 70 of 2016 High; Court of Tanzania at Bukoba (unreported). He has prayed this Coiirt to find the act of delivering two judgments to befatal: 'W, P ■ <L- Lv . On the second ground of appeal, the appellant is leaning his case on the fact that he was acquitted in the Criminal Case No. 350 of 2021. He thus W;. calls his Court to exercise its power by re-evaluating the evidence as the first appellate Court and come up with its own finding and or conclusion so that the decision is made in his favour. He has cited the case of the Registered Trustees of Joy in the Harvest versus Hamza K. Sungura, Ciyil Appeal No. 149 of 2017 Court of Appeal of Tanzania at Tabora, (unreported) where it was held that: "On our part, we are in agreement with both learned advocate that it is part of ourjurisprudence that a first appellate Court is entered to re-valuate the entire 4 evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision The appellant argues that his case was a civil case and the standard of proof is on the balance of probabilities citing the case of Barelia Karangirangi versus Asteria

Nyalwamba [2019] TLR 142 (CH) it was held in that case that: "The principle governing proof of casein Civilsuitsthat - he who alleged must prove. The rule finds a backs from sections 110 and 111 of the law of Evidence Act, [Cap 6 R.E2002]; It is similar that’in Civil Proceedings, the party with legal burden a/so bears the evidential burden and the standarci'in each case is on a balance of probabilities" The appellant has applied the position in the circumstances of the present case and submitted that one, the respondent did not dispute that they ■ L'' v '■ f•-b* ' t1"'1 arrested the plaintiff and prosecuted him in Criminal Case No 350 of 2021 at Mpanda Urban Primary Court, which case ended in the favour of the plaintiff. He insisted on the evidence of DW1 Henry Thobias Asenga. The appellant has also emphasized that the respondent is bound by the pleadings where they admitted that the appellant was arrested through 5 their report and prosecuted. The appellant sought the indulgence of this Court to refer to exhibit P2, a judgment in Criminal Case No. 350 of 2021 and the pleadings. The appellant has thus argued that the magistrate ought to have awarded damaged as claimed. He therefore prays for the judgment and orders allowing the appeal, and that the respondent be ordered to pay the appellant Tshs. 60,000,000/= (sixty million Tanzaniashillings). In reply to the submission in

chief,.the counsel for the respondent, Ms. Tunu Fredinand Mahundi, learned advocate has submitted in opposing the appeal by laying down the principle governing successful claim for U-< ‘"fe. damages on malicious prosecution as enunciated in the case of Jeremiah Kamana Versus Bugomola Mayandi [1983] TLR 12 where it was held that: M.., M "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 (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". 6 The counsel has submitted according to the decision cited the elements must be proved simultaneously. And according to that case, basing on section 110 of the Evidence Act, [Cap 6 R.E 2022] it is the duty of the plaintiff. The counsel has referred to the circumstances of the case at hand and asked the question whether the arrest and prosecution,was based on the reasonable and probable cause. He argues that there was a cause for arrest as there was damage to the property.. Hence, the respondent has the view that the complaint in ground 2 of the appeal is baseless as the appellant failed to execute his duty under section 110 of the Evidence Act, [Cap 6 R.E 2022]. The burden of proof of

malicious prosecution cannot be inferred by the trial Court from the judgment of the Primary Court in Criminal Case No. ' >!-’•*£?7 ’ **r• r!i4 v. k .< kJ < ?.7:', 350 of 2021. . In regard to the first ground of appeal that the trial Court delivered two judgments, the counsel for the respondent has submitted that there was only one judgment which was delivered on the 15th August, 2022. If at all it will be said there were two, then the appellant may be, he is referring to the judgment of the trial Court in Criminal Case No. 350 of 2021. The impugned judgment is that of Civil Case No. 10 of 2021 and the other is 7 the judgment of the Primary Court in Criminal Appeal No. 350 of 2021 which brings up the purported action for malicious prosecution in Civil Case No. 10 of 2021. The counsel has thus prayed that the appeal be dismissed for want of merit with costs. I have as well read the record of the appeal, the memorandum of appeal, its attachments, the purported two judgments and also the record of the trial Court. The question for determination ^whether the appeal has merit. In the memorandum of appeal, the appellant has raised three grounds of , appeal as reproduced i n th isjudgment.However, I have noted the appellant has submitted on the first ground of appeal and the second ground of appeal. "";g;x v. .. On the first ground of appeal the appellant is complaining that there

were two judgments delivered on the same date. He has attached the two copies. He could however not assist this Court to see how the two judgments have different contents. I have read the two copies in the content of the record trial Court. One thing I have noted, both of the two copies have the same ending or conclusion. That the suit is dismissed with no costs. 8 A further look at the details, show? the two copies have the same contents except changes in some of the sentences which it seems the trial magistrate was improving on the other. It is however, very clear the conclusion is the same. My view, may be the trial magistrate did not destroy the preceding copy so that to leave the copy intended for consumption by the public hence making it look like there were two decisions. However, the record of the trial tribunal has one copy, which is similar to Annexture A to the memorandum of appeal. At this juncture, I find the complaint is sought td^speculate on the possible malpractice on the part of the magistrate, which attempt is not well substantiated either by design or ignorance. l ean only end up advising the trial magistrate to be careful when dealing With his work lest unscrupulous persons imputes him of malpractice. On the question whether the evidence tendered was sufficient to prove that there was malicious prosecution of the appellant/plaintiff. I have an opinion

against the opinion of the appellant. The argument by the appellant is that since he was acquitted of the offence of malicious damage to property by the Primary Court in the Criminal Case No. 350 of 2021 then the trial Court in the impugned judgment ought to have decided in his favour. 9 Essentially the claim for damages made by the appellant, plaintiff in the trial Court was based on an action of malicious prosecution. The appellant as shown above has the opinion that the acquittal in Criminal Case No. 350 of 2021 entitles him of the grant of damages for malicious prosecution. He has insisted also because the respondent did not dispute that they instituted Criminal charges against the appellant. The respondent however through her counsekhas; argued that there are elements which must be proved simultaneously in orderClaims of '77^ 77^7" damaged on malicious prosecution to be .granted. She cited the case of Jeremia Kamana Versus Bugomola Mayandi [1983] TLR123 in the cited case it was observed that for the claim to be granted, the plaintiff must prove that: % '7? i. That he was prosecuted. ii. The proceedings complained of ended in his favour. r;_>> iii. : The defendant instituted the prosecution maliciously. iv. That there was no reasonable and probable cause for such prosecution. v. That damage was occasioned to the plaintiff. I have gone through the record, indeed there was a

criminal case and the complainant is recorded Mobisol (UK) Ltd. the complaint were that the io appellant destroyed the solar power system by disconnecting a wire from the panel and the Television whereby he connected his own battery. That enabled him to utilize the system without effecting any payment to the owner the complainant. The system and its accessories were acquired by the appellant through a hire purchase agreement. At the time the appellant was still owing Tshs. 5,745,000/=. In general, the criminal case was instituted following damage to the solar power system and also failure to pay instalment. T:, The counsel for respondent has argued that there was reasonable and probable cause to file a criminal case against the appellant which is a good defence for the action for malicious prosecution. The position stated by ST '"v the counsel is in accord to the law. TT Under the circumstances, I find the decision of the trial Court was proper 's'- . Tss,' X’-'T. in law and therefore the appeal has no merit. The same is dismissed with costs: It is ordered accordingly. Dated and delivered at Sumbawanga this 21th day of September, 2023. T.M. MWENEMPAZI

JUDGE 11 Judgment delivered this 21st September, 2023 via video conference whereby the appellant received the judgment while at District Court of Misungwi District and Absence of the Counsel for the Respondent. T.M. MWENEMPAZI

JUDGE 21/09/2023 Right of appeal explained % W. . ;, T.M. MWENEMPAZI

JUDGE 21/09/2023 12