20171025 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DARES SALAAM (CORAM: MJASIRI, J.A, MWARIJA, J.A And MWAMBEGELE, J.A) CIVIL APPEAL NO. 102 OF 2013 SEIF MOHAMED MAUNGU .................................... APPELLANT VERSUS WEINDUMI LAMECK SAWE . t/a W.L. SAWE GARAGE ................................... RESPONDENT (Appeal from the Judgment of the High Court ofTanzania at Dar es Salaam) (Mutungi, J.) dated the 29th day of September, 2011 in Civil Case No. 118 of 2008 JUDGMENT OF THE COURT 14th June & 27 th October 2017 MJASIRI, J.A.: The appellant filed a suit for malicious prosecution against the respondent in the High Court. The appellant was the plaintiff and the respondent was the defend;;mt. The High Court held that the respondent had reasonable and probable cause and accordingly dismissed the appellant's case. Being dissatisfied with the decision of the High Court, the 1 appellant has appealed to this Court. The appellant has presented a six- point memorandum. of appeal which is reproduced as follows:- 1. The le(lrned trial Judge erred in law and in fact in ,, holding that the defendant had a reasonable l and probable cause in reporting the matter to the police for their action when in fact there was no such cause, let alone a reasonable cause. 2. The learned trial judge erred in law and in fact in making a finding that the respondent was not liabl~ for the prosecution. of the appellant. 3. The learned trial judge erred in law and in fact in holding that the defendant was not actuated by malice in preferring a complaint .. to tfJ~_,,pQILce ..- ·-·-· - --- against the defendant. 4. The learned trial Judge erred in fact in making a finding that the police had an honest belief in --------------- 2 ---- - -- ---- - - --- _____.... -----. ·- ---------- ' . the guilt of the appellant while there was ample evidence to the contrary. 5. The learned trial Judge erred in fact and law in holding that the appellant was the cause of his own prosecution. 6. The learned trial Judge erred in law in failing to adjudge the case according to pleadings, the issues framed, and the evidence in general. The background to this case is as follows. The appellant who was the proprietor of Jersey Company Limited was a customer of the respondent. The respondent was a mechanic who owned a garage known as Sawe Garage. The appellant and respondent had a business arrangement. The appellant would send a fleet of motor vehicles to S~we <;arage for repairs .... The arrangement was that the respondent would repair the motor vehicles and the appellant would make payments by installment. All was well until 2005 when the appellant's financial position deteriorated. He had an outstanding bill of Shs. 9,694,450/=. Only Shillings 1,201,000/= was paid . .. ----T-t-le--aJ3f)ellant-i'ssuea a cheque in favour of the respondent for the 3 ------ --- ---------:::-_ : - - ~..---...... =·~.---·- - - outstanding amount, in the sum of Shs. 7,558,000/=. He warned the respondent not to present the cheque to the Bank, as he had no funds in his bank account. The appellant then went out of Dar es Salaam for more than six months. While he was away, he had no communication with the respondent, and refused to answer his calls. The respondent then decided to present the appellant's cheque to the Bank. The cheque was dishonoured. Fearing that he was being shortchanged by the appellant, he made a complaint to the Chang'ombe Police Station. The appellant was summoned at the police station .and readily acknowledged his debt. He made a partial payment (Shs. 4,800,000/=) and undertook to settle the outstanding balance·. He failed to do so; leading to his arrest, confinement and prosecution. He was charged with the offence of kite-flying contrary to section 332 B (3) of the Pen·a1 Code, Cap 16 R.E. 2002 (the Penal Code) in January 2007. The charge against the appellant was subsequently withdrawn by the police and the appellant was set free . The appellant then sued the respondent in the High Court for malicious prosecution, false imprisonment and for abuse of legal progress. The appellant claimed for special damages amounting to Shilling Five Million- (5,000,000/= ); general damages in the sum of Shillings Three 4 ·------ - --- - ---- --- ----------- Hundred Million (300,000,000/=) and ·punitive damages in the sum of Shillings One Hundred Million (100,000,000/== ). The suit was dismissed by the High Court. The High Court was of the view that the respondent had a reasonable and probable cause to report the matter to the police. At the hearing of the appeal, the appellant was represented by Mr. Gabriel Mnyele, learned advocate and the respondent had the services of Mr. Joseph Rutabingwa, learned advocate. In the course of hearing the appeal Mr. Mnyele abandoned grounds 5 and 6 in his memorandum of appeal. In his submissions, he stated that the appellant's cause of action is as outlined in paragraph 8 of the plaint on page 8 of the record. According to him the following factors were established:- (1) False impdsonment. (2) Malicious prosecution. (3) Abuse of the legal process. Mr. Mnyele complained that the trial Judge did not make any reference to false imprisonment,· that is,· the fact that the appellant was arrested and. pl~c~d i':) Cl}Stqdy'. Mr._ Mny_ele_ submitted.-that as-this- is a first 5 .c - - - - - _, _______ _, __ - -------·--- ___ --- --- - - ------=-::-:--:--:-:---------- -- --·---·- -- .. . - - -· .... - -·-- .. - ---- -· - -~· appeal, the Court can consider that. He brought to the attention of the Court the case of Moris Sasawata v Matias Maleko (1980) TLR 1581 in which Samata J. as he then was, held that in order for the plaintiff to . . succeed in a suit for malicious prosecution, he must prove the following:- 1. He was prosecuted by the defendant. 2. It was the defendant who initiated the prosecution. 3. The prosecution ended in the plaintiff's favour. 4. The plaintiff was prosecuted without a reasonable or probable cause. Mr. Mnyele also made reference to Abdulkarim Haji v Raymond Nchimbi Alois & Another (2006) TLR 419, Yonah Ngassa v Makoye Ngassa (2006) TLR 213 and Hosia Lalata v Gibson Zumba Mwasote (1980) TLR 154. According to Mr. Mnyele, it is evid~nt ..from . the record that the respondent initiated the prosecution, and that the case ended in favour of the appellant. As to whether there was reasonable and probable cause, Mr. Mnyele argued that the appellant owed the respondent money. The appellant did not therefore commit any criminal offence, he was merely 6 • ~- ------ --- . ------- ------------------- -- - - - -------·--- - -- • - - H- • ·•• - - - •• ••••• • • •• • . . '.-.-:--~··-----:--"- - - - - • ~ - ~ - ~ .•-•••-•~•- • - • • •:::.• ~ •e•-:;-....:,_,~ • ' - • • - - - - • •---• • -- • ' indebted to the respondent. He stated that the police had no authority to oversee debts. He made reference to section 5( 1) of the Police Force and Auxiliary Services Act, Cap 322. He argued that the claim against the appellant was a civil claim and should have been pursued as such. He stated that upon looking at the testimonies of .PW2 and PW4 there is no evidence that a charge of Kite-flying contrary to section 332 B (3) of the Penal Code was committed. The appellant admitted the debt and issued a cheque which was dishonoured. This is an issue which should have been dealt with as a civil claim under Order 35 of the Civil Procedure Code, [Cap 33, R.E. 2002] (the CPC). Mr. Mnyele submitted further that malice has been clearly established. He reli~d on Exhibit P6. A~cording to him, the appellant paid money at the police station, this was an abuse of office by the police. He stated that malicious prosecution is actionable per se, and there is no requirement to prove damages. He asked the Court to award the appellant general damages, and to also order the respondent to pay punitive damages. Mr. Rutabingwa, on his part, submitted that it was not the - . respondent who initiatecf the proceedfrigs, what ·he did wiis to lodge a 7 complaint. It was the police who. initiated the prosecution. He stated that the dishonoured cheque was issued on behal.f of a company, but was signed by the appellant. Mr. Rutabingwa argued that in order to prove malicious prosecution all the four (4) ingredients have to be satisfied. He stated that in the instant case all the four ingredients have not been established. On the issue relating to the injury of the appellant Mr. Rutabingwa submitted that this was not framed as an issue in the High Court and the trial Judge did not make a finding on the same. The issue cannot therefore be . raised at this stage.. A case was initially filed at Kisutu Court and was then withdrawn. No evidence was ever presented to show that the appellant was injured. In reply, Mr. Mnyele reiterated his arguments and relied on Hosia Lalata v Gibson Mwasote (supra). He submitted that it was the respondent who initiated the prosecution and not the police. We, on our part, after carefully going through the record and the submissions by counsel, we are of the considered view that the crucial issues for consideration and determination are as follows:- 1. Whether or not the respondent had a reasonable and - · probable cause. ----------------. --------·-- 2. Whether or not the respondent was actuated by malice. This is a first appeal. We are alive to the fact that a first appellate court, has jurisdiction to review, re-assess and re-evaluate and analyze the record and the evidence in order to determine its own independent conclusions. In Selle v Associated Motor Boat Company Limited (1968) EA 125 it was stated thus:~ "On first appeal, an appellant is entitled to have the appellate coutt's own consideration and view of the evidence as a whole and its own decision thereon. // However, this jurisdiction has to be exercised with caution. The view of the trial judge as. far as the credibility lies is entitled to great weight, as it saw and heard the witnesses. In a tort of malicious prosecution each of the ingredients outlined in - ·- - ·--·- ---·- . ----·· - Aos·ia -La·lafii's cas-e (supra) mu.st be proved for a plaintiff to succeed in a suit for malicious prosecution. It_ is evident from the record that a police officer arrested and charged the appellant on the basis of the complaints filed by the respondent. The proceedings terminated in favour of the _______________.appeUant-as-tl:le-cf::lar-g@s-against-tt-le-ap13ellant-weFe-wit:hdr-awn-by-the - - - 9 prosecution. Therefore, what remains for consideration are the other two essential elements,. namely whether. the respondent acted without reasonable and probable cause and whether he acted maliciously. Although the lack of reasonable and probable cause may be taken as some evidence of malice, the plaintiff cannot rely solely on the defendant's failure to show reasonable and probable cause. There is necessity for the plaintiff to prove malice. We find no evidence by or led for the appellant which shows spite, malice or ill will against the appellant. It is well established that in a claim for damages for malicious prosecution, malice must be proved. Evidence must be presented showing that the person instituting the proceedings was actuated either by spite or ill will or by indirect or improper motive. See - Mitchell v Jenkins (1833) 110 ER 908. This proposition has been approved in Mbowa v East Mengo District Administration (1972) EA 352. . . In James Funke Ngwagilo v Attorney General (2004) TLR 161, malice with regard to the tort of malicious prosecution, was defined as follows:- 10 ------ -- --·- ______ ______ ____ ------- ---· ____;..---~----- -·-- - - - - - - - - - - - - - ___:.. - - - - - - ----------- "Malice in the context of n1alicious prosecution is an intent to use the legal process for other than its legally appointed and appropriate purpose. " In Yonah Ngassa v Makoye Ngassa (supra) it was held that:- ''/n an action for damages for malicious prosecution, it is not sufficient for a plaintiff to prove only that the prosecution was instituted by the defendant and terminated in the plaintiffs favour. He must also show that the defendant acted maliciously and without reasonable and probable cause." In view of the above authorities, we are satisfied that the essential elements of malicious prosecution were not established. We cannot therefore fault the trial judge on her finding that the respondent had a reasonable and probable cause to report the incident to the police, given the absence and the appellant's failure to communicate with the respondent and taking into consideration the lapse of time. The complaint ' ' to the police was bonafide and not actuated by malice given the circumstances. In Yonah Ngassa, the Court, making reference to 11 --- - - - - - - - - - - - Halsubury's Laws of England (3 rd Edition) Volume 25 at page 361 stated that:- "The burden of proof in an action for damages for malicious prosecution lies in the first instance on the plaintiff. It is not sufficient for him to prove that he was innocent of the crime for which conclusion he was prosecuted by the defendant by proving the prosecution terminated in his favour. He must show that the defendant acted maliciously and without reasonable and probable cause'~ In Kagane v. A.G (1969) EA 643 Rudd, J, set the test for reasonable and probable cause; citing Hicks v Faulkner (1878) 8 QBD 167 at 171, Herniman v Smith (1938) AC 305 and Glinski v Mciver (1962) AC 726 stated thus:- ''Reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable ground of the existence of a state of circumstance~ which 12 assuming to be true/ would reasonably lead an ordinary prudent and cautious man placed in the position of the causer lo the conclusion that the person ~harged was proba/;Jly guilty of the crime imputed. N [Emphasis provided]. In James Funke Ngwagilo (supra), the Court relying on Tempest v Snowden (1952) 1 KB 130 stated th9t "it is enough if the defendant believes that there is reasonable and probable cause for the prosecution'~ The Court departed ,from the rigid position laid down in Hicks v Faulkner (supra) which defined reasonable ·and probable cause as an honest belief in the guilt of the accused. In the instant appeal, there is no evidence whatsoever that the respondent had no reasonable and probable cause and that he was actuated by malice. In relation to the claim for special damages, the law is settled. Special damages must be specifically pleaded and strictly proved. See - . - Ratcliffe v Evans (1892) 2 QB 824 and Kampala City Council v 13 ------L-- ------- ----:--LL ' - - :--- ;..· •. --~ ~ ·_.....=-..;.-. - . . ...... ..:.... ••- ·- - - - ----· .. Nakaye (1972) EA 446. As far as punitive damages are concerned, such damages are awarded only under two circumstances namely:- (i) Where there is oppressive, arbitrary or unconstitutionalacuon. (ii) Where the defendant's action was calculated to procure him some benefit, not necessarily . . financial at the expense of the plaintiff. See - Obongo & Another v. Municipal Council of Kisumu (1971) EA 91 and Rookes v Bernard & Others [1964] AC 1129. General damages are subject to the discretion of the Court. In Mbowa v East Mengo Administration (supra) Lutta, J.A held that: "The plaintiff in order to succeed, all the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has suffered damage. In other words, the four requirements must "unite" in order to create or establish a cause of action. .ff the plaintiff does not prove them he would fail in his action. " 14 The tort of malicious prosecution is therefore committed where there is no legal reason for instituting criminal proceedings. The purpose of the prosecution should be personal and spiteful. Malice exists where the prosecution is actuated by spite,. ill will and/ or improper motive. Lack of reasonable and probable cause cannot be relied upon See - Katerega v. A.G (1973) EA 287. On the question of malice, there is no evidence on record to show that the respondent was actuated by malice in reporting the incident to the police. Neither can it be inferred from the circumstances of the case. We are of the considered view that malicious prosecution has not been established. The appellant having failed to prove that the respondent who instituted the proceedings against the plaintiff was actuated by malice, he has failed in his claim for damages for malicious prosecution. See - Paul Valentine Mtui and Another v Bonite Bottlers Limited Civil Appeal No. 109 of 2014, CAT (unreported). We therefore see no justification whatsoever to fault the findings of the High Court Judge, that is, that the respondent acted with a reasonable and probable cause. 15 --- ------------- ------- - - - - - - - - - - . "' <f. In the result, we find that the appeal has no merit and we accordingly dismiss it with costs to the respondent. DATED at DAR ES SALAAM this 25t:h day of October, 2017. S. MJASIRI · JUSTICE OFAPPEAL A.G. MWARIJA JUSTICE OF APPEAL J.C.M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. OF APPEAL 16