HUKUMU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALLAM SUB REGISTRY AT DAR ES SALAAM CIVIL APPEAL CASE NO 14748 OF 2024 CASE Ref no 202406221000014748 (Originating from the judgment and decree of Ilala District Court at Kinyerezi in Small Claim no, 86 of 2023 Nyenyema PRM) SALUM AZIZI......................................................................... APPELLANT VERSUS KASHINDE HAMAD MNASI ................................................. RESPONDENT JUDGMENT: 17th Oct & 20th Nov 2024: KIREKIANO, J; Before the District Court of Ilala, the appellant herein sued the respondent in an action of malicious prosecution. He claimed TZS 70,000,000/= as damages. According to the claims in the district court, it was alleged that on 24/06/2022, the appellant was arrested by the police following the report filed by the respondent accusing him of threatening to kill by words contrary to section 89 of Penal Code CAP 16 [R.E 2022] This complaint culminated in the appellant's trial at Ukonga Primary Court. Upon full trial, the primary court acquitted the appellant because the complainant failed to prove the case beyond reasonable doubt, a standard in criminal cases. 1 The appellant considered himself a respectable person in his society; thus, his arrest and detention on the accusation of threatening to kill, absence from work, and the criminal prosecution all combined, in his calculation, lowered his reputation in the eyes of the public at large, and also putting his work at risk. He thus looked back at the respondent; he complained that the charge laid against him was by design to have him detained so that the respondent could win a disputed land between the two; he filed a civil suit in the action of malicious prosecution, seeking the following reliefs. i) Payment of TZS 70,000,000/= for making a false and malicious claim against him to the police, leading to his arrest, prosecution and acquittal. ii) Interest on the decretal sum at the court rates of 7% per annum from the date of judgment to the date the decree is fully satisfied. The respondent's defence was that there was no malice, instead, following the appellant's threat that she would not live until June 2022, she decided to report the matter to the police and left it to them until when the appellant was arrested and taken to court for trial. The trial court adjudged the suit in favour of the respondent and held that the case was not proved in required standard. It is this decision 2 which angered the appellant; he preferred an appeal to this court, setting forth three grounds of appeal thus; 1. That, the learned trial Magistrate partially evaluated evidence recorded to the extent of reaching to the wrong observation while proving the element of reasonable and probable cause and malicious intention to establish malicious prosecution. 2. That, the learned trial Magistrate misinterpreted section 7 of the Criminal Procedure Act to determine the observation malice on the part of the Respondent without considering evidence put on records 3. That the learned trial Magistrate was bias in evaluating the evidence on record. When the appeal came for hearing the appellant had service of Mr Harry Mwakalasya while the respondent was represented by Mr Hashim Mziray learned advocate. The appellant counsel Mr Mwakalasya faulted the trial court finding that the two elements of malicious prosecution were not proved that is the prosecution was instituted against appellant without reasonable and probable cause and the other element that it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect. 3 According to Mr Mwakalasya, the trial court ought to have considered that it was the appellant who filed a case not the police. A such he argued that section 7 of CPA was misconceived by the trial court. The report by respondent to police and arrest were in the span of two days, and on Friday by design to ensure the appellant is taken to remand on weekend. With regards to complaint of bias in the third ground. He said the evidence was not well evaluated by the trial magistrate. On his part, Mr Mziray supports the finding of the trial court that the appellant did no manage to prove the elements of malicious prosecution, he said, the discrepancy in prosecution case was not an issue and the appellant arrest, was done by the police who framed the charge. He said the respondent was exercising her statutory duty to report a criminal matter to police. As stated in section 7 of the Criminal Procedure Act Cap 20 [RE 2022]. In his brief rejoinder, the appellant counsel argued that, there was malice on part of the respondent and in reporting to police and insisted that there was bias going by the manner in which the trial magistrate analysed the evidence. On my part, in this appeal, the first and third grounds of appeal are basically on the evaluation of evidence. The appellant faults the trial court 4 evaluation of the evidence before it hence reaching at wrong decision. He appellant went ahead in complaining on bias on the manner the evidence was evaluated. It can not be over emphasised, that before making a finding of fact courts are enjoined to scrutinise the available evidence by both sides and decide with reasons depending on the weight attached to the evidence. This is a first appeal, I should hasten to state that the first appellate Court, as a matter of principle, is tasked to reevaluate the evidence adduced in the trial Court and test whether decision should stand or may come up with its own conclusion. This position has been state in numerous decisions including the case of Kaimu Said v. Republic, Criminal Appeal No 391 of 2019 where the Court of Appeal pronounced: ‘We understand that it is settled law that a first appeal is in the form of a re-hearing as such the first appeal court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own finding of fact, if necessary. In order to prove action of malicious prosecutions, the trial court raised issues thus; 1. Whether the plaintiff/claimant was prosecuted by the respondent, 2. Whether the claims was terminated in the claimant's favour.3. Whether the said prosecution was instituted without probable cause and reliefs to the parties. 5 Going by the argument in this appeal what is contentious here is whether there was reasonable and probable cause for the respondent to prosecute the appellant. I wish to recap the law on this area by referring to the decision of this court In Adam Mkilima vs Aviv Co.Ltd (DC. Appeal No. 11 OF 2023) [2024] TZHC 1460 (16 April 2024) Kareyemaha J citing Adam v. Aisa Issai [1969] HCD 280 held: "When there is reasonable suspicion that an offence has been committed and good ground for thinking that a particular person is responsible it is the duty of every citizen to pass on such information... to the police help them to find the offender. If the police act on such information and arrest anyone then the person who has given the information should not be liable for damages for defamation unless it is plain that he had no good grounds for suspecting the person named. I note here that, in this appeal the appellant's action was on malicious prosecution; however, it is on the same reasoning, I hold that when dealing with whether the defendant had reasonable and probable cause, all facts have to be looked at and if there is an act or omission done which is contrary to law and a sound rule of law dictate that law should take its 6 cause then a person reporting the act or omission will have reasonable cause. During trial the respondent is recorded to have said; On 21/06/2022 when I arrived at my house, I was seated in front of my house SALUM come and told me that I am a prostitute and I will not alive up to the end of this June 2022. On the early morning, I reported the matter to police station at Stakishari for my security as in case anything happens my relatives be aware with. I did not force the matter to be taken to court as this issue are legal matters where there is a procedure need to be followed upon reported it to police station’ What is clear here is that there were threats on the respondent life, following the exhibited bad blood which existed between these two relatives. The respondent decided to report the matter to police for further action. In her finding the learned trial magistrate reasoned and held; I find it reasonable on the part of the respondent to take such further action like reporting to the police. In fact, the respondent was fulfilling his noble duty as per Section 7 of the Criminal Procedure Act. This court also take a judicial notice that in now day the murder cases and grave bodily injury are emanated from land case and dispute among parties, by the prior existence of that conflict it is probably threats among them is expectable. So, the action done by 7 the respondent was her duty to report for further security, but taking the matter to court was the duty of the public prosecutor and not the reporter. I have considered the appellant counsel’ argument that there was uncertainty on the alleged crime scene. I hasten to say here that this court is not interested in proof of the criminal case which was filed against the appellant. What is important here is whether there was such allegation of crime committed. That fact alone made it a reasonable cause for prosecution of the appellant. In the book by Winfield and Jolowicz on Tort 15th edn. (1998) at page 684 the author quotes Lord Devling in Glinski v. McIver [1962] A.C. 726 at 766-767, as giving perhaps the most helpful definition or reasonable and probable cause: thus: Means that there must be cause (that is, sufficient grounds for thinking that the plaintiff was probably guilty of the crime imputed: In Hicks v. Faulkner [(1878) 8 Q.B.D 167]. This does not mean that the prosecutor has to believe in the probability of conviction: The prosecutor has not got to test the full strength of the defence, he is concerned only with the question of whether there is a case fit to be tried (emphasis supplied). 8 I tend to agree with the trial court finding that as long as there was complaint of commission of offence which is punishable by law, reporting the same to police were justified. This takes me to the complaint on interpretation of section 7 of the Criminal Procedure Act. Cap 20 [RE 2022] In this, the learned, trial magistrate considered that the respondent had duty to report her complaint to police. Under section 7 of the Criminal Procedure Act. The same provides: 7.-(1) Every person who is or becomes aware- (a) of the commission of or the intention of any other person to commit any offence punishable under the Penal Code; or (b) n/ a. shall forthwith give information to a police officer or to a person in authority in the locality who shall convey the information to the officer in charge of the nearest police station. What is important is that reporting to police should not be motivated by malice. In Bhoke Chacha V Daniel Misenya 1983 TLR 329 (HC) Mushi J held; that to prove action of malicious prosecution it must be proved that reporting to police was malicious and it was made without any reasonable or probable cause. 9 Mr Mwakalasya’ argument on malice was that, the respondent reporting to police and appellant arrest were done within two days and on weekend that is to ensure that the appellant is sent to remand. I have considered this argument, the same is not based on law. While malice is important element to be proved, there is no basis leave alone legal one to say that reporting a suspect on Friday or charging someone in court in Friday on suspicion that bail may not be completed before weekends is a manifestation of malice. As such having found that there was reasonable cause as eluded above, I see no basis to fault the trial court decision on this. In the end, I hold that this appeal was brought without sufficient ground. The same is dismissed. I have considered the parties relationship, they are relatives. In this, having reflected on issue of costs prudence dictates and I so hold that each part should bear its own costs. 10 A. J. KIREKIANO JUDGE 20.11.2024. COURT: Judgment delivered in the presence of Mr Harry Mwakalasya for the appellant and in presence of the respondent in person. A. J. KIREKIANO JUDGE 20.11.2024. 11