shabani slaum makengela vs dondwe village council 2018 tzhc 2307 20 february 2018

IN THE HIGH COURT OF THE TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT PAR ES SALAAM CIVIL APPEAL NO. 81 OF 2017 SHABANI SLAUM MAKENGELA................ APPLICANT VERSUS DONDWE VILLAGE COUNCIL....... ......... RESPONDENT 20/12/2018 & 20/2/2018 JUDGMENT I.P.KITUSI. 3. The appellant Shaban Salum Makengela lost in an action for malicious prosecution preferred by him against Dondwe Village Council the present respondent. The suit proceeded exparte against the respondents the trial court having satisfied itself that what purported to be a written statement of Defence hereafter WSD had not only been filed beyond the prescribed time but had been presented by the District Executive Director, a person other than the defendant, therefore a stranger to the proceedings. The brief background to the case was that the respondents had allegedly set in motion criminal proceedings against the appellant vide Criminal Case No.35 of 2016 alleging that he had stolen a total of Shs 3,000,000/= belonging to them. It was an undisputed fact that the said criminal case ended in favour of the appellant by his acquittal and he alleged that his prosecution had been prompted by malice on the part of the respondent. On this basis the appellant claimed monetary reliefs that is Shs 100,000,000/= for malicious prosecution and an unspecified sum for unlawful confinement. He further claimed for punitive as well as general damages. Appellant's five witnesses told the following story; The appellant was the Chairman of Dondwe hamlet but was also Acting Chairman of Ndodwe Village in the years 2010 to 2014. As Acting Chairman of the village, on 12th November 2014 the appellant signed documents to approve a Sale Agreement involving a piece of land between one Japhet Kibona and Jukwila, the purchaser, and as far as the appellant was concerned the matter ended there. In 2016 he was summoned to Mkuranga Police Station where charges of theft of Shs 3000,000/= that was capital gains tax for the sale transaction and that the money was the property of Dondwe Village Council. The statement of Complaint tendered in court as Exhibit P2 showed that it was one Victoria Simon @ Mgeni the Executive officer of Dondwe Village who set in motion the legal proceedings. Shabani Nusura Malingumu (Pw4) and Abdallah Shani Ngwanya (Pw5) who were appellant's sureties in the criminal Case, as well as Mohamed Amir Rashid (Pw2) and Said Jumanne Kalenda (Pw3) members of the village council testified on how rumors of the alleged 2 theft spread around the village though unfounded and how Victoria Mgeni took it upon herself to prosecute it, unsuccessfully. The trial Court addressed the issue whether the appellant was maliciously prosecuted in the Criminal case and concluded on the evidence before her that the village Executive officer who reported the theft had a reasonable and probable cause to believe that the appellant had received the money as alleged. Referring to the case of James Funke Gwaailo Vs Attorney General [2004]TLR 161 she concluded that there was no proof of malice because there was no proof that the respondent had the intent to use the legal process to achieve something other than the intended purpose. This appeal raises four grounds, the first being that the trial court erred in concluding that the village Executive Officer had a reasonable and probable cause. The second ground still raises the issue of whether or not there was probable and reasonable cause when thecharge for stealing capital gain tax was clearly misplaced given thefact that he appellant could not have been an agent of the Tanzania Revenue Authority which is mandated to collect taxes. The third ground is a complaint against the court cross- examining the appellant's witnesses and the fourth ground is a complaint that the court failed to evaluated the evidence properly. For the appellant, Mr. Hashim Mziray, learned advocate who had appeared for him during trial grounds 2 and four of appeal were abandoned. He addressed the third ground first and cited section 146 (2) of the Evidence Act Cap 6 read with Section 147(i) of the same by submitting that the court ought not to have cross - examined the appellant's witnesses even though the case was ex parte. As regards the first issue it was submitted that the fact that the appellant was charged for stealing capital gains tax which he had no powers to collect was proof that there was not reasonable or probable cause. Mr. Salum Papen appearing for the respondent briefly submitted that section 7(1) & 2 of the Criminal Procedure Act, CPA empowers the VEO to report any crime. As for ground No. 3 he simply submitted that the hearing proceeded ex parte therefore the court did not err. In his rejoinder Mr Mziray challenged the argument regarding alleged powers of the VEO under Section 7(1) & (2) of the CPA as being the advocate's argument's from the bar which were not cited by the trial court. The learned counsel submitted in relation to the court's powers to cross- examine a witness that it was wrong for it to do so even if the case proceeded ex parte. My starting point shall be restating the principle that the plaintiff has a duty to prove his case even if it proceeds ex parte. In this case the plaintiff, now appellant had a duty to prove that his prosecution had been actuated by malice without probable or reasonable cause. In the case James Funke Gwaailo (supra) cited by the learned trial magistrate, which I had the occasion to cite in the case of Ex B 9690 S/Sat Daniel Mshambala V. The Inspector General of Police & 2 other Civil Case No. 33 of 2009 High Court Dar es Salaam Registry (unreported) the following passage was quoted; " It is now well established that by malicein the tort of malicious prosecution, it does not mean spite or hatred; What it means is merely wrong motive." The appellant sought to prove the absence of reasonable and probable cause by adducing evidence of his innocence. However the law requires much more than that, so that it is not enough for the plaintiff to imply such absence of probable and reasonable cause. In the book titled A CASE BOOK ON TORT. Tony Weir, Landon Sweet & Maxwell 1996 8th Edn the duty to prove absence of probable and reasonable cause is expressed in this way at page 625; "The essential ground of this action is, that a legal prosecution was carried on without a probable cause. We say this is emphatically the essential ground; because every other allegation maybe implied from this; but this must be substantively and expressly proved and cannot be implied" 5 I have re - evaluated the evidence on record and the submissions by the appellant but I have not been able to see a tangible express evidence of lack of probable cause. I cannot on the available material find justification to fault the learned trial Resident Magistrate on her finding that there was no proof of absence of probable and reasonable cause. I have also tried to consider the appellant's contention that the trial court went out of its way and cross - examined the witnesses in support of his case. I am unable to see the merits of this argument in view of the fact that the appellant did not seek to adduce express proof of malice or want of probable cause. The argument as for cross examinations by the court would only have merits if it demolished some substantive proof of the ley elements, but since there was no such proof, I cannot uphold this argument. For those reasons this appeal is devoid of merits and I dismiss it I with costs. I^PtKITUSI JUDGE 20/2/2018. 6 20/ 2/2018 Coram : Hon. Magutu DR For the Appellant: Present For the Respondent : Hamis Ndambachia a chairman of Dondwe Village Cc: Masasi COURT - The judgment delivered on 20/2/2018 in presence of both parties A. MAGUTU DR 20/ 2/2018 Right of Appeal full explained A.MAGUTU DR 20/ 2/2018