20190529 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 176 OF 2017 (Based from Kilombero District Court in Civil Case No. 21/1014 delivered by Hon. B.N. MASHABARA, RM) SELEMANI NJALAMOTO .......................................... ~ ........., ..•..,.. APPELLANT VERSUS REGISTEREDD TRUSTEES OF TANZANIA NATIONAL PARKS (TANAPA) ............................... RESPONDENT JUDGMENT Date of last order: 21 / 04/2019 Date of Judgment: 29/05/2019 NGWALA, J. The appellant Seleman Njalamoto was the Plaintiff in the District Court of Kilombero. He complained that the respondents had maliciously prosecuted him in Criminal Case No. 245 of 2006 in the Kilombero District Court where he was acquitted; and hence a claim of Tshs. 60,000,000/= against the said defendant now the respondents for general damages and or compensation for malicious prosecution. Upon hearing the case, the trial court held that the Plaintiff was not maliciously prosecuted by the defendants, and that the plaintiff was 1 ., .... ·•. ,c not entitled to any of the reliefs claimed. That trial court, further · entered Judgment and Decree in favour of the Defendants in the following terms: ~ "1. No payment of general damages to a tune of shillings sixty million (Tshs. 60,000,000/=) being compensation for malicious prosecution. 2. Each party to bear its costs." It is against the aforesaid Judgment and Decree that the appellant has filed a Memorandum of Appeal containing seven paragraphs as grounds of Appeal. The grounds seek to challenge the way the court -. analysed the evidence. The appellant is complaining ·that the testimonies of his witnesses was expunged and that the trial magistrate wrongly held that the respondent was not a proper party to be sued. The appellant argues in his submission and on this ground that it was the respondent who put into motion the prosecution, with ill motive when he was arrested and prosecuted. 2 .:,. ,I It is also in the said grounds of Appeal that the Proceedings of the trial court were irregular. The trial court had put itself in to the position of the respondent and failed to consider the elements of malicious prosecution. Furthermore, the appellant submitted that his witnesses' testimonies in the proceedings were erroneously paraphrased and the judgment was not in accordance with requirements of writing a judgment. It is argued that the judgment of the trial court lacked reasons for the decision. After a through perusal of the record of the trial court, and going through the submissions by the parties, I find that this appeal. is .. bankrupt of merit. I hold so because there is a clear evidence from the testimonies of the witnesses on record, and the reasoned judgment of the trial court, and in his submission, that in essence the appellant has admitted that there was probable and reasonable cause of putting the law in motion in his Reply to the submissions of the Respondents that was drawn and filed by his advocate Barnabas Luguwa. The appellant had referred this court to the landmark English Case of Hicks v. Faulker (1978) SQBD 167 at page 171 3 !.- where Hawkins, J. approved and adopted the definition of the term reasonable cause in Herman v. Smith (1938) AC 305 at page 316 where it states: - '"An honest belief in the guilt of the accused upon a full conviction founded upon reasonable grounds, of existence of circumstances which assuming them to be true, would reasonably lead any ordinary prudent man placed in the position of the accused to the conclusion, that the person charged was probably guilty of the crime imputed." The above, is reflected in the judgment of the trial court in its analysis of the evidence, when the court made reference to the case of Jeremiah Kamana v. Bugumola Mayandi (1983) TLR 123 at page 125. The trial court analysed well all the five important questions or elements which a person suing for malicious Prosecution has to comply with. The trial court further referred to the case of Brown v. Hawkes [1891)2. QB 18 at Page 723 to drive home the point on malice as defined in Halsbury Laws of England that: - 4 .. : . . ';: . ........ ' ,. "The malice which a Plaintiff in an action of damages for malicious prosecution has to prove is not malice in its legal sense, that is such as may be assumed from a wrongful act done Intentionally, without just cause or excuse, but malice in fact - "Malus animus" indicating that the defendant was activated either by spite or will against the plaintiff by indirect or improper motives" In this case it is quite clear that there are no irregular proceedings as complained by the appellant. The record shows that the learned trial magistrate had framed two prime issues which are reproduced ipssama verba for easy of reference as follows: - "1. Whether the Plaintiff was maliciously prosecuted by the defendant in Criminal Case No. 245 of 2006, and 2. To what reliefs are the parties entitled to." After hearing each party and their respective witnesses, the trial court delivered its judgment, within which it analysed the evidence, 5 reasoned and decided correctly that the plaintiff had failed to prove his case on balance of probabilities. The trial court decided so after. it correctly found that, in this case there was reasonable suspicion by the Police force regarding the information from the informer on the gun that was used in committing the offence belonged to the plaintiff. The Police Force therefore, when prosecuting had Probable cause, and they were not acting on ill will or improper motives. More so it is also clear from the appellant's own exhibit, that he ··· .\ tendered in Court, and admitted as exhibit Pl, a copy of the Ruling in Criminal Case No. 245 of 2006 - R. v. Selemani Njalamoto of Kilombero District Court, which cleared him on 13th day of October, 2006, whereby he was found with no case to answer in a charge of the offence of "unlawfully transfer of firearms c / s 24 of Arms and Ammunition Act, No. 2 of 199. The exhibit and evidence showed that the respondent was completely unconnected with the initial Report of the offence. None of the Respondent's employees reported to the Police Officers about that offence, but the said allegations were made ?; . by Privatus Ngabula and Gabinius Chipweli at Ifakara Police Station. 6 \j in their caution statements that were recorded by F. 2180 D/CPL Nuru that it was the two suspects who had been arrested by Game Park rangers of Udzungwa National Park and sent to the said Police Station as per the testimony of DWI the OC CID of Kilombero that, the said suspects mentioned that the gun (that was tendered in the Criminal case exhibit - Pl) belonged to the appellants. It was clearly elaborated by the trial magistrate that, the fact that the appellant was acquitted in that Criminal Case is not a proof that his prosecution was actuated by Malice, as held in the cited case of Jeremiah Kamana v. Bugomola (supra), where Hon. Chipeta, J. (as he then was) at page 126, when he had this to say: - "It is not every Prosecu_tion which ends in accused favour that exposes the answer to a suit for damages for malicious prosecution. If that were so, scores of complainants or Police informers would be sued" In case, of Valentine Mtui and Andrea Yakobo v. Bonite Bottlers Limited Civil Appeal No.109 of 2019, the Court of Appeal of Tanzania cited with approval the case of Yonah Ngassa v. Makoye Ngassa (2006) TLR 2013 which mentions the ingredients of ,. malicious prosecution and underscored this point. It dismissed the Appeal. ·It is on that account in brief, that I uphold the decision of the trial court that found the respondent unconnected with malicious prosecution, as held by his Lordship Korosso, J. in Mafumba Jilawaji v. Budu Muyagola [1992] TLR 310 TLR (HC) that: - "It is self-evident that the Respondent was completely unconnected with the initial arrest, detention and decision whether or not to formally charge the appellant before a Court of Law. The suit was frivolous and the Appeal should be dismissed" All that said, I find this Appeal with no merit. It is accordingly dismissed. In the circumstances of this Appeal as the respondents have not turned up today, I make no orders as to costs. ~I A.F. NGWALA JUDGE 29/05/2019 8 29/05/2019 Coram: A. F. Ngwala, J. Appellant: Present Respondent: Absent C.Clerk: Miss. Lulu Masasi. i Court: Judgment delivered in court in the presence of the 'f ·'.': Appellant, and in the absence of the Respondents. Court: Right of Appeal of Court of Appeal of Tanzania explained. ~. A.F. NGWALA JUDGE 29/5/2019 9